:*#£. 






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If LIBRARY OF CONGRESS, j 




FREE REMARKS 



The Spirit of the Federal Constitution, the Practice of the. 
Federal Government, 



OBLIGATIONS OF THE UNION, 

■nEsrEfrmo 

Trans h^&iot®^ ©if shl&vbhbi: 

FROM THE 

Cemtartes and n^eto states* 



" If it was possible for men who exercise their reason to believe, that the Divine 
Author of our existence intended a part of the human race to hold an absolute 
property in, and an unbounded power over others, marked out by his infinite 
gooiiness.and wisdom as the objects of a legal dominion, never rightfully resisti* 
ble, however severe and oppressive, the inbabitants of these Colonies might at 
least require from the Parliament of Great Bntain some evidence that this dread- 
ful authority over them has been granted to that body." Declaration of the 
United Colonies (July 6, 1775). 



BY A PHILADELPHIAN, 



PHILADELPHIA: 

PUBLISHED BY A. FINLEY, N. E. CORNER OF CHESNUT 

AND FOURTH STREETS. 

Wm. Fry, Printer. 

1819. 



/~ 



EASTERN DISTRICT OF PENNSYLVANIA, to wit: 

|********| BE IT REMEMBERED, thai on the eighteenth day of 

§ Seal. | December, in the forty-fourth year of the Independence of the 

$********! United States of America, A. D. 1819, Anthony Finley, of the 

said district, hath deposited in this office, the title of a hook, the right 

whereof he claims as proprietor, in the words following, to wit: 

" Free Remarks on the Spirit of the Federal Constitution, the Practice of the 
Federal Government, and the Obligations of the Union, respecting the Ex- 
clusion of Slavery from the Territories and New States. 

' If it was possible for men who exercise their reason to believe, that the Di- 
vine Author of our existence intended a part of the human race to hold an 
absolute property in, and an unbounded power over others, marked out by 
his infinite goodness and wisdom as the objects of a legal dominion, never 
rightfully resistible, however severe and oppressive, the inhabitants of these 
Colonies might at least require from the Parliament of Great Britain some 
evidence that this dreadful authority over them has been granted to that 
body.' Declaration of the United Colonies (July 6, 1T75.) 

* By a Philadelphian." 

In conformity to the act of the Congress of the United States, intituled, 
"•An act for the encouragement of learning, by securing the copies of 
maps, charts, and books, to the authors and proprietors of such copies 
during the times therein mentioned." — And also to the act, entitled, " an 
act supplementary to an act, entitled * an act for the encouragement of 
learning, by securing the copies of maps, charts, and books, to the au- 
thors and proprietors of such copies during the times therein mentioned,' 
and extending the benefits thereof to the arts of designing, engraving, 
and etching historical and other prints." 

D. CALDWELL, 
Clerk of the District of Pennsylvania. 



\ 
FREE REMARKS. 



SECTION I. 



THE original members of this republican confederacy, when 
colonies, found their political liberty menaced with an abridg- 
ment which yet would have left them, perhaps a larger por- 
tion of that blessing, and more scope for self respect and in- 
dependent exertion, than were enjoyed by the nations of the 
European continent styling themselves the most free. But, 
exquisitely jealous and inflexibly tenacious of all the privi- 
leges known to the most liberal scheme of government, they 
resisted the first and slightest inroads upon those privileges, 
and in maintaining them, encountered with unshaken reso- 
lution, the severest trials and most formidable dangers* 
Throughout their magnanimous struggle, they bottomed their 
claim to them, not merely on the British constitution, their 
charters, and prescription, but on the nature of man and the 
behest of Providence. They ascended to first principles in 
their own favour; and in their Declaration of Independence,* 
began by proclaiming that all men are equal, and endowed 
by their Creator with certain unalienable rights, such as life, 
liberty, and the pursuit of happiness. They repeated this 
doctrine in their subsequent manifestoes;! they obtested 
Heaven and earth on the same ground; they constantly up- 
braided Great Britain with her inconsistency in endea\souring 

« See, too, the Declaration of Rights of the Congress assembled at Philadel- 
phia, September 1774: And the Declaration of the United Colonies (July 6, 1775) 
on taking up arms. 

•J- See their Addresses to the People of the Colonies. 



to wrest from them what her subjects at home vaunted as 
their birthright, and in refusing to extend to all ^ ithin the 
pale of her empire the full enjoyment of her constitution.* 
They pointed to the works of Sidney and Locke as the ma- 
nuals of their immediate forefathers, and their own text- 
books; they even appealed to the Bible in confirmation of 
the natural equality and independence of all the specie s.f 
This maxim, such of them as at once remodelled the.i ics- 
pective governments, had placed the first in the lisi of fun- 
damentals;^: it was, in short, the device of the revolution; the 
frontispiece of all the revolutionary institutions. 

The confederated colonies did not confine themselves to 
the assertion of the broadest theory of political rights; they 
descanted upon the topics of philanthropy and universal jus- 
tice, of Christian charity and humility; and in reproaching 
the mother-country with the contrariety between her prac- 
tice and professions, with her insensibility to human suffer- 
ing and degradation, they took credit to themselves for the 
reverse. It was in alleged pursuance of those high consi- 
derations and pretensions to which I have adverted, that 
their delegates in Congress, without being specially empow- 
ered, passed and promulgated, several months before the 
Declaration of Independence, (6th April, 1770), a resolu- 
tion that no slaves should be imported into any part of the 
conf deration. § 

With all these circumstances, there was one feature in the 
social condition of most of the states, standing out in offen- 
sive contrast. The negrO'slavery which existed among them, 
formed a strange commentary upon the texts with which 
they sermonized throughout their revolution, and seemed to 
the distant world a gross anomaly and incongruity, giving 

* See the Address (July 8, 1775) of the United Colonies to the Inhabitants of 
Great Britain: Also— the Address (May 26, 1775) to the Canadiansj and the 
Address (July 28, 1775) to the People of Ireland. 

\ See note A . 

% Constitution of Massachusetts. " All men are born free and equal, and have, 
certain natural, essential, and inalienable rights," &c. The language of the Con- 
stitutions of New Hampshire, New York, Pennsylvania, Delaware, &c. is the 
Same See note B. 

§ See the Journals of CoDgress for 1776 



to their revolutionary creed, and regenerated polity, an air 
of imposture or infatuated selfishness. They could not be 
supposed to entertain the opinion, that the African race did 
not belong to the family of man; or that, if gifted with less 
vigorous and comprehensive faculties of mind, that race or 
any other so disadvantaged, became a lawful prey to the more 
fortunate one, to be held in absolute property and unqualified 
subjection: Such opinions were understood to be exploded 
and scorned throughout Christendom.* They could not be 
admitted to be blind to the inherent wickedness and defor- 
mity of hereditary servitude; they had universally testified 
their conviction on this head in their denunciations of Great 
Britain; some of them had abolished the evil, avowedly from 
a sense of its enormity, as soon as they acquired the power, 
by their liberation from her yoke. Our negro-slavery pre- 
sented itself, therefore, to the eyes of those who were unac- 
quainted with its history and incidents, in a scandalous and 
opprobrious abstraction; — as a fixed contradiction and sole- 
cism disfiguring both our juridical and political codes. 

Of these unfortunate appearances, all our federal assem- 
blies, from the commencement of the revolution to the for- 
mation of our present government, must have been fully 
aware: but they were supported against the disgrace, by the 
knowledge that this slavery was not introduced, and could 
not be at once effaced, by the new sovereignties which they 
represented. It was a pre-existing, unavoidable evil, im- 
putable to the mother country; and of which the extirpation 
was not to be even attempted, until the federal empire, at 
which they aimed, should be consolidated, and the Ameri- 
can nation not only secure in independence, but matured in 
strength and resources. They were conscious, that, sooner, 
nothing could reasonably be expected from them; except, 
perhaps, the declaration that a course of remedy would be 
entered upon when that state of affairs was reached; and its 
uncertainty at the outset of the revolution, is the best excuse 
which can be offered why the first of them did not pledge 
the nation to the effort. It. was, perhaps, due to consistency, 



* See note C. 



to national honour, and to the cause of justice and morals, 
that the extirpation of slavery from the American soil, 
when this might be practicable, should be proclaimed 
a primary and settled purpose with the confederation which 
asserted such a character, such dispositions, and such mo- 
tives of action, as are detailed in the Declaration of Indepen- 
dence.* 

The Congress of 1787 would seem to have been particu- 
larly alive to the obligations in this matter, imposed by the 
facts which I have indicated above. They recognized the 
principle of universal abolition, in their proceeding with 
respect to the North West Territory; of which proceed- 
ing the history and import are especially worthy of atten- 
tion. 

The whole territory north of the river Ohio, and west of 
the state of Pennsylvania, extending northwardly to the 
northern boundary of the United States, and westwardly 
to the Mississippi, was claimed by Virginia. The states of 
Massachusetts and Connecticut claimed all that part which 
was within the breadth of their respective charters, and the 
state of New York had also an indeterminate claim to the 
country. As early as the year 1780, Congress recommended 
to all the states whose charters included ungranted ter- 
ritory, to cede it to the Union for national purposes; and 
the states without such territory, always contended that 
the lands gained by the common exertions, were or ought 
to be common property.f Some of the smaller withheld 
their ratification of the articles of confederation, in order 
fc> compel the cession for which they called as matter of 
right; and finally they carried their point. The act of cession 
of the state of New York is prefaced with the following 
recital. 

" Whereas nothing under Divine Providence, can more 
effectually contribute to the tranquillity and safety of the 

* The revolutionary governments of South America* in forming tWeir consti- 
tutions, either emancipated the slaves at once, or fixed a period for emancipatitjn. 
See the work entitled "Outline of the Revolution in South America." 

t See Ramsay's History of the United States, Chap. 29. 



United States of America, than a federal alliance, on such 
liberal principles as will give satisfaction to its respective 
members; and whereas the articles of confederation and per- 
petual union, recommended by the honourable Congress of 
the United States of America, have not proved acceptable 
to all the states, it having been conceived that a portion of 
the waste and uncultivated territory, within the limits or 
claims of certain states, ought to be appropria ed as a com- 
mon fund for the expenses of the war: and the people of this 
state of New York, being, on all occasions, disposed to ma- 
nifest their regard for their sister states, and their earnest 
desire to promote the general interest and security; and 
more especially to accelerate the federal alliance, by remov- 
ing, as far as it depends upon them, the before mentioned 
impediment to its final accomplishment, &c." 

The act of cession from the state of Massachusetts com- 
mences in the following language: ** Whereas several of the 
states in the union have at present no interest in the great 
and extensive tract of uncultivated country, lying in the 
western part of the United States, and it may be reasonable 
that the states abovementioned should be interested in the 
aforesaid country, &c. &c." 

Of the immense territory ceded from these motives, the 
portion which Virginia conveyed was by far the largest. In 
two of the states, parties to the grant, slavery was still per- 
mitted; in the other two it had been abolished. None of 
them imposed a condition upon the United States, in their 
acts of cession, as to the toleration or prohibition of slavery 
in the countries ceded. Nor was there any general stipula- 
tion in favour of the settlers in them, on the score of the 
slaves which they held. But the Congress had added, to 
their recommendation abovementioned (of the 6th September 
1780) a resolution dated October 10th, 1780 that " the unap- 
propriated land which might be ceded or relinquished to the 
United States, should be settled and formed into distinct 
republican states, which should become members of the fe- 
deral union, and have the same rights of sovereignty, free- 
dom, and independence, as the other states." The state of 



8 

Virginia, in the act (20th October 1783) empowering her 
delegates to transfer to the United States, annexed to the 
authority, the condition, that " the territory ceded should 
be laid out and formed into states, and that the states so 
formed should be formed into republican states, and admit- 
ted members of the federal union, having- the same rights of 
sovereignty , freedom, and independence as the other state" 

The North- West Territory being thus put, with these 
restrictions, at the disposal of the United States, Congress, 
their only representation, proceeded, by the same right by 
which they had negotiated and received the cession of the 
territory, to make permanent regulations for it; and passed 
accordingly an ordinance, dated July 13, 1787, for its go- 
vernment. This ordinance, worthy of the highest admira- 
tion for its perfect coincidence with all the principles and 
actions of which I have spoken,— -after making various dis- 
positions, runs thus: — " And for extending the fundamental 
principles of civil and religious liberty, which form the ba- 
sis whereon these republics, their laws, and constitutions 
are erected; to fix and establish those principles as the 
basis of all laws, constitutions, and governments, which: for- 
ever hereafter, shall be formed in the said territory; to pro- 
vide for the establishment of states therein and for their 
admission to a share in the federal councils on an equal 
footing with the original states, at as early periods as may 
be consistent xvith the general interest, it is hereby ordained 
and declared, that the following articles shall be considered 
as articles of compact, between the original states and the 
people and states of the said territory, and for ever remain 
unalterable, unless by common consent, &c." 

The second of these solemn articles provides that no man 
shall be deprived of his liberty or property but by the judg- 
ment of his peers, or the laws of the land, &c: The third 
provides that the property, rights, and liberty of the Indians 
shall never be disturbed or invaded: The fifth provides 
that there shall be formed in the said territory, not less 
than three, nor more than five states, and that such states 
shall be admitted into the confederacy, on an equal foot- 



ing with the original states in all respects whatever. The 
sixth article, with which we have now particularly to do, is 
as follows — " There shall be neither slavery nor involuntary 
servitude in the said territory, otherwise than in the pun- 
ishment of crimes whereof the party shall have been duly 
convicted; provided always, that any person escaping into 
the same, from whom labour or service is lawfully claimed 
in any one of the original states, such fugitive may be law- 
fully claimed, and conveyed to the person claiming his or 
her labour or service as aforesaid." 

We thus see that the Congress, in the first instance in 
which a portion of the American territory was subjected 
to their jurisdiction, prohibited slavery for ever, in that por- 
tion; declaredly in pursuance of the general view of extend- 
ing the fundamental principles of civil and religious liberty, 
and of fixing and establishing those principles as the basis 
of new republics which were to be introduced into the con- 
federacy. In excluding slavery on these grounds, they stig- 
matized it as repugnant to the noble ends just stated; and 
have justified me in asserting that they recognized the prin- 
ciple of universal abolition. At least, it cannot be denied 
that they proclaimed the principle of its exclusion from all 
the new states, which might be admitted into the confede- 
racy. This inference is fortified by the tenor of the pro- 
vision in the sixth article concerning fugitive slaves, the 
right to recover whom, is limited to the original states. 
That the Congress looked to the addition of new members, 
besides the states to be formed out of the North Western Ter- 
ritory, is evident from the following provision of the fourth ar- 
ticle; " the navigable waters leading into the Mississippi and 
the St. Lawrence and the carrying places between the same, 
shall be common highways and for ever free as well to the 
inhabitants of the said territory, as to the citizens ot the 
United States, and those of any other states that may be 
admitted into the confederacy" 

The Congress proclaimed further, by the strain of this 
ordinance, and of their preceding Resolutions on the same 
subject, that the new states, though disabled from tolerating 
slavery, were still to be considered as having the same rights 

B 



10 

of sovereignty^ freedom, and independence, as the original 
states, and that, though so disabled, they en ered, when ad- 
mitted, into the confederacy, upon an equal footing -with 
the original states in all respects whatever. The power of 
establishing slavery was thus denied to be among those 
rights: And the same degree of protection in the enjoy- 
ment of them, — an equal share in all the real benefits of 
the federal constitution, — was given to be understood as 
the meaning of the phrase last quoted. 

Another important maxim was, in the same manner, 
avowed and determined on this occasion. The state of Vir- 
ginia, in her act of cession, stipulated that " the French 
and Canadian inhabitants and other settlers of Kaskaskies, 
St. Vincents, and the neighbouring villages, who professed 
themselves citizens of Virginia, should have their posses- 
sions and titles confirmed to them, and be protected in 
the enjoyment of their rights and liberties."* The Con- 
gress, in establishing in their ordinance, rules of inherit- 
ance and testamentary disposition for the Territory, more 
conformable to the spirit of the American institutions than 
those which prevailed there, made an exception in favour 
of the above mentioned settlers, in the following terms: 
" Saving to the French and Canadian inhabitants, and other 
settlers of the Kaskaskies, Saint Vincents, and the neigh- 
bouring villages, who have heretofore professed themselves 
citizens of Virginia, their laws and customs now in force 
among them, relative to the descent and conveyance of pro- 
perty." But the Congress, in decreeing that there should be 
neither slavery nor involuntary servitude, made no excep- 
tion in favour of those inhabitants and settlers, on the score 
of their slaves who were not inconsiderable in number in 
the proportion; and it is known that, to escape the opera- 
tion of the ordinance in this respect, many families remov- 
ed beyond the limits of the Territory. Congress thus 
rejected the idea of the faculty of retaining the slaves as 
such, or subjecting their offspring to perpetual bondage, 
being among " the rights and liberties," or " titles," or law- 

• See 1st vol. Laws of the United States, p. 472. 



11 

ful " possessions," of the inhabitants and settlers. And 
the maxim to which I have alluded, as avowed and deter- 
mined by the ordinance, is this — that the United States 
acting in a federal or collective capacity, could not admit 
a right of property in human flesh, where they had juris- 
diction, nor understand it to be referred to, in any gene- 
ral stipulation concerning the unmolested enjoyment of 
rights, titles, liberties, or possessions. 

The ordinance so pregnant with principles and views pro- 
scriptive of slavery, asserting so absolute a power over the 
subject in the case of federal territory, had the unanimous 
sanction, through the votes of delegates in the old Con- 
gress, not only of Virginia, but of the two Carolinas, and 
Georgia. Virginia did not think the conditions which she 
had imposed in the act of cession, violated b\ the regula- 
tions of the ordinance; her opinion was expressed not only 
in the votes of her delegates, but soon after, more directly, 
in an act of her own legislature. On receiving her grant, 
with the modifications which she had prescribed, Congress 
asked, by Resolution,* an alteration of the act of cession, 
as to her particular division of the territory ceded, into 
different states; adding to the request the following phrase, 
— " which states shall hereafter become members of the 
federal Union, and have the same rights of sovereignty, 
freedom, and independence, as the original states, in con- 
formity with the resolution of Congress of the 10th of Oc- 
tober, 1780." After the formation of the ordinance, Virginia 
passed an act (30th December, 1788) acceding to the re- 
quest or recommendation of Congress contained in the Re- 
solution; referring particularly to that Resolution; reciting 
in extensor and especially ratifying the fifth article of the 
compact of the ordinance, — in which article a change of 
the division which she had prescribed, was made. She left 
it to be necessarily implied by this act of confirmation, that 
she did not consider Congress as having, by the prohibition 
of slavery in the North West Territory, violated the pledge 
given in their Resolution of request, that the states to be 

* July 7th, 1786. 



12 

formed out of the said territory should have the same rights 
of sovereignty, freedom, and independence, as the original 
states. The request of Congress on. the one hand that she 
would " empower the United States," to make a division 
different from that which she had traced, and her formal 
confirmation, on the other, of the arrangement in which that 
Assembly had departed from her plan, prove a common 
understanding as to the regularity of the interpretation of 
all the other parts of their several acts and proceedings in 
the case. The other southern states, as I shall have occasion 
to show hereafter, also ratified the ordinance directly; and 
it was re-enacted by the first Congress under the new con- 
stitution. 



When communities which had acted and spoken, as I 
have noted; which had assumed, emphatically, the title of 
republics; which, after extorting the recognition of their 
independence, solemnly ascribed their signal triumph to 
the favour of Heaven propitiated by the sincerity of their 
declarations, the elevation of their motives, and the justice 
of their cause, — when they combined to establish a govern- 
ment national as well as federal, it could not be, that they 
would devise a system restricted, in its beneficence, to men 
of any particular complexion of body; equitable and advan- 
tageous only for themselves; securing their freedom and 
prosperity, but serving to rivet and perpetuate the thraldom 
of another description of the human race. When they en- 
tered into a compact of perpetual union and co-operation, 
they could not intend a partnership merely in military de- 
fence; in the culture of tobacco and wheat; in trade and 
navigation, or in territorial aggrandizement; — a partner- 
ship " subservient only to the gross animal existence of a 
temporary and perishable nature;" but rather one having 
also higher objects and interests, — universal justice and 
universal liberty — moral and intellectual perfection* in the 
utmost extent in which this could be promoted by political 

* See Vattel, b. 2. c . 



13 

arrangements. And, with regard to the negro-slavery with 
which they were afflicted and stained, if they could not at- 
tempt its extinguishment, at least they would not fail to 
provide against its extension, and would so legislate as to 
favour to the utmost the end of abolition. 

It must have been with impressions of this nature, that 
the Convention of 1787 appointed to create a federal consti- 
tution, entered upon their task. We may collect the fact 
from the tenor of the preamble to their system, in which 
the American people collectively are made to appear as the 
onlv agents on the occasion, and to propose as their chief 
ends, the establishment of justice, the promotion of the ge- 
neral welfare, and the perpetuation of the blessings of li- 
berty. 

On the subject of the negro-slavery the framers of the 
constitution, had, no doubt, the same opinions with respect 
to the quarter to which the guilt of it attached, and the ne- 
cessitv of postponing all attempts at abolition, which I have 
described as common to the other federal assemblies. They 
were therefore, equally consoled under the disrepute insepar- 
able from its continuance, and cautious about tampering with 
its cure. But, we must confess, that an explicit avowal of 
the principle of abolition was still more required from the 
Convention, than from the Congress that put forth the de- 
claration of independence; because abolition was now more 
within the limits of practicability and calculation, and the 
debt of righteousness to Providence, greatly increased by 
the issue of the revolutionary struggle, and the career of 
prosperity opened to the nation.* If some such avowal 
was not made, — if some concurrence of national circum- 
stances was not designated in the constitution, as the junc- 
ture when the attempt at abolition should be begun under 
the auspices and with the resources of the confederacy — 
we may presume, however, that the representatives of 
most of the states desired and urged such a course of pro- 
ceeding, and only consented to waive it from the inflexi- 

* See on this point the inaugural address of General Washington, as Presi- 
dent of the United States, to Congress (April 30th 1789) and the answers of 
the Senate and House of Representatives. Note D. 



14 

bility of others of their body. There was more to hope on 
the subject of abolition, with, than without the national sys- 
tem of Union which they had in view; it could be attempt- 
ed more safely, and effected more easily, under such a sys- 
tem, although no active power, no control whatever, with 
regard to the internal economy of the slave holding states 
in this respect, should be lodged in the new government. 
None, therefore, was insisted upon; and the whole subject 
of slavery within the limits of a number of the states, was 
left under their exclusive cognizance and control respec- 
tively. 

But, it became necessarily a topic of reference and ar- 
rangement in the constitution; and here we shall see, that 
the framers of this instrument, were not wanting in the sense 
and views which were becoming in such men, and proper in 
themselves, and suitable to the occasion. They pronounced 
the condemnation of the institution of slavery, by abstain- 
ing from the use of the word slave, when they were called to 
refer to this class of beings; and substituting for it a term 
of vague import: They acted as one afflicted with an heredi- 
tary leprosy, or any other foul disease of similar origin, 
would do, in veiling it as far as possible from the eye of 
the world, though with the consciousness of being free 
from personal guilt.* They acknowledged by this expedi- 
ent, its general odium and inherent turpitude, and establish- 
ed a pregnant admonition for the American people and 
particularly the slave holding states. Their reserve has 
been interpreted further into a belief that the constitution 
would survive the canker of slavery, and into the con- 
sequent design of excluding from the former, whatever 
might immediately awaken the recollection of its existence 
within the jurisdiction of the Republic. Be this as it may, 
the proceeding argues dispositions on their part every way 
adverse to the extension of the evil under the auspices of 
the svstem which they were forming. 

* Mr Jay, in his letter to the Hon. Elias Boudinot, (17th Nov. 1819) makes 
the following remarks. "The word slaves was avoided, probably on account of 
the exist ng toleration of slavery, and its discordancy with »he principles ot tht> 
revolution, and from a consciousness of its being repugnant to some of the posi- 
tions in the Declaration of Independence." 



15 

These dispositions are more directly proved by the tenor 
of that clause of the constitution which relates to the slave 
trade, and of which it belongs to my purpose to investi- 
gate the true meaning and scope. The clause is as follows 
— " The migration or importation of such persons as any 
of the states noxu existing shall think proper to admit, shall 
not be prohibited by the Congress prior to the year one 
thousand eight hundred and eight, but a tax or duty may 
be imposed on such importation, not exceeding ten dollars 
for each person." " I understand the sense and meaning of 
this clause," says Mr. Jay, " to be — that the power of Con- 
gress, although competent to prohibit such migration and 
importation, was not to be exercised with respect to the then 
existing states, until the year 1808; but that the Congress 
were at liberty to make such prohibition as to any Jierv 
states, which might in the mean time be established; and, 
further, that from and after that period, they were authoriz- 
ed to make such prohibition as to all the states, whether new 
or old." 

That the power of prohibition, with respect to the original 
members of the Union, was denied to the federal government 
until the expiration of twenty years, is a stain upon our 
national character, which is rendered the deeper by the Re- 
solution to which I have already adverted, of the Congress 
of 1774, against the further importation of slaves into the 
thirteen colonies, and by the complaints which some of 
those colonies had, still earlier, preferred against the British 
crown on this score. The Congress of 1774 even exceeded 
what was afterwards deemed the measure of its competency, 
to arrest the slave trade; the Convention of 1787, with full 
and undisputed powers to suppress it at once, postponed the 
suppression for twenty years, showing the national virtue 
to have been more active and rigid in the crisis of danger, 
than in the season of security and ease.* 

* There is, however, this excuse for the Convention; that most of the states 
had, themselves, prohibited the slave trade and the importation of slaves. Geor 
gia and South Carolina persisted in receiving them from abroad. See note E 



16 

** It were doubtless to be wished,'* says Mr. Madison, in 
the Federalist, " that the power of prohibiting the importa- 
tion of slaves, had not been postponed uniil the year 1808, 
or rather, that it had been suffered to have immediate ope- 
ration. But it is not difficult to account, either for this re- 
striction on the general government, or for the manner in 
which the whole clause is expressed. It ought to be consi- 
dered as a great point gained in favour of humanity, that a 
period of twenty years may terminate for ever within 
these states, a traffic which has so long and so loudly up- 
braided the barbarism of modern policy; that within that 
"period, it will receive a considerable discouragement from 
the federal government, and may be totally abolished, by 
a concurrence of the few states which continue the unnatu- 
ral traffic, in the prohibitory example which has been given 
by so great a majority of the Union." 

The immediate cause to which Mr. Madison alludes, of 
this impolitic and sinful restriction upon Congress, is ex- 
plained by the same authority, in the Report of the debates 
of the Virginia Convention respecting the Constitution. I 
will extract the passage, in order that the discredit may fall 
upon the true culprits. 

" The southern states would not have entered into the 
union of America, without the temporary permission of the 
slave trade. And if they were excluded from the union, 
the consequence might be dreadful to them and to us. We 
are not in a worse situation than before. That traffic is pro- 
hibited by our laws, and we may continue the prohibition. 
The union in general is not in a worse situation." 

** The gentlemen from South Carolina, and Georgia argu- 
ed in this manner: — ' We have now liberty to import this 
species of property, and much of the property now possess- 
ed, has been purchased, or otherwise acquired, in contem- 
plation of improving it by the assistance of imported slaves. 
What would be the consequence of hindering us from it? 
The slaves of Virginia would rise in value, and we would 
be obliged to go to your markets.' I need not expatiate on 
this subject. Great as the evil is, a dismemberment of the 
union would be worse. If those states should disunite from 



17 

the other states, for not indulging them in the temporary 
continuance of this traffic, they might solicit and obtain aid 
from foreign powers."* 

The first remark which I shall make in respect to the 
construction of the clause in question is, that, though the 
word persons is employed, it refers exclusively to negro 
slaves. This is expressly affirmed by Mr. Jay.f The suppo- 
sition that it was intended to invest Congress with the pow- 
er of preventing at any time the emigration of zvhite freemen 
into any of the states, either the old or new, or that it was 
thought necessary Congress should be empowered to inter- 
fere to restrain them from admitting coloured freemen 
or white malefactors,— involves an absurdity, and has been 
universally rejected. Some idea of the kind was thrown 
out by the cavillers at the constitution, at the time it was 
proposed to the people for adoption, and Mr. Madison al- 
ludes to the objection in the following remarks. " Attempts 
have been made to pervert this clause into an objection 
against the constitution, by representing it on one side, as 
a criminal toleration of an illicit practice, and on another 
as calculated to prevent voluntary and beneficial emigrations 
from Europe to America. I mention these misconstructions 
not with a view to give them an answer, for they deserve 
none, but as specimens of the manner and spirit in which 
some have thought fit to conduct their opposition to the 
proposed government.":}: 

In no other part of the constitution, except in this clause 
respecting the importation of slaves, are the states mentioned 
m the peculiar phraseology of — " the states now existing." 
"We are entitled to infer that there was an intention of ren- 
dering the limitation to the original thirteen, as precise and 
striking as possible; and of subjecting the new states and 
all territory which might belong to the union, most em- 
phatically to the control of Congress on this head. The 
whole text, indeed, bespeaks a compromise in which, on 
the one hand, the privilege of multiplying the race of slaves 
within their limits, either by importations from abroad 

* F. 322. t See his Letter quoted above. t Federalist 

C 



18 

or domestic migration, is reluctantly yielded for a term 
to those southern states who made this compliance a sine 
qua nan of their accession to the union; while, on the 
other hand, the power is conceded, by implication, to the 
federal government, of preventing at once the extension 
of slavery beyond the limits of the old states — of keeping 
the territory of the union, and the new statt-s, free from 
the pestilence; and ultimatelv, of suppressing altogether the 
diabolical trade in human flesh, whether internal or external. 

The various motives which led to the formal recognition 
of a power in the federal government to prohibit the impor- 
tation of slaves, are plainlv distinguishable. The traffic was 
acknowledged to be in itself heinous and disgraceful; the 
subsequent bondage cruel, unjust, dangerous. A moral and 
enlightened people, jealous of principle and character, as 
well as watchful of the general peace and safety, would do 
nothing not exacted by a supreme necessity, that might en- 
large the crying evil and sin; would do all that was prac- 
ticable to prevent its extension; all that might, without in- 
jury or strife, conduce to its extinction. The importation of 
slaves from abroad increased the number of dangerous in- 
mates; it multiplied the objects of injustice and oppression; 
and in so doing, might lead to the diffusion of the evil over 
a larger surface where it would, in progress of time, reach 
the same intensity: it increased the difficulty if it did not 
wholly take away the possibility, of universal or partial 
emancipation. These latter considerations had, we are bound 
to suppose, the greatest weight with the Convention. 

By the clause above quoted, the federal government is 
recognized to have the power of prohibiting at once and 
for ever, not only the importation of slaves from abroad, into 
the territories and new states, but their migration, or re- 
moval from the old states into the new or into the territo- 
ries. The conjecture has been indulged that the Convention 
employed the words migration and importation as synoni- 
mous. But these words had never been so received either 
among the proper authorities in language, or in common 
parlance: neither custom nor etymology would warrant such 
a use of them. We are not entitled to imagine, that the let- 



19 

tered men and distinguished writers who framed the consti- 
tution would, where precision was so important, have con- 
founded terms correctly and commonly understood to be of 
distinct import,' or, in the hypothesis that this was not noto- 
riously the case, have fallen into sheer tautology.* If they 
had intended to vest in Congress no other or further power 
than that of prohibiting importation, they could not have 
conveyed their meaning more clearly or fully, than by the 
word importation alone. 

Moreover, it is an established rule of interpretation, with 
respect to every instrument of writing, that due force is to 
be given to every term in it, which has a plain, acknow- 
ledged sense, and can be applied with certainty and without 
difficulty. The term migration is of this description. It af- 
fords no scope for conjecture or arbitrary comment. It is, 
indeed, capable of being extended, in its derivative signifi- 
cation, to the act of emigrating, across an ocean for instance, 
from one quarter of the world to the other; but its common 
and equally proper acceptation is the act of changing place 
or domicile in the same country or continent. Now, it is 
also an established rule of interpretation, that if the subject 
or matter treated of, will not allow, that the terms of a dis- 
position should be taken in the enlarged sense, we ought 
to adhere to the most limited sense which the proper sig- 
nification will admit. This rule is the more imperative 
where the extensive interpretation would lead to an absur- 
dity. But we have seen that the clause of the constitution 
refers only to slaves, whose removal from abroad to this 
country, bv any other mode than importation, could never 
have been in the contemplation or fancy of the Convention, 
and would not, of course, have been expressed by any other 
term. We are then left to understand by the word migration 
in the clause, the transportation or removal of slaves from 
one state to another, or from a state to a territory. It may 

* The constitution, after being fully digested as to the substance, was referred 
to a committee for the purpose of being freed from all superfluous words. Each 
phrase was weighed with a view to the utmost precision, by members who were 
thought especially qualified to decide. I have this fact upon the authority of one 
of them, and not the least distinguished. 



20 

be objected that migration implies something of an inde- 
pendent, voluntary act, which cannot properly be predicated 
of slaves; but we may suppose that the Convention preferred 
the word on this account: the use of it is in consonance with 
that of the word persons, and belongs to that policy of virtu- 
ous shame which sought to shadow our internal condition, in 
a constitution destined for the study and admiration of the 
world, and for indefinite duration. At all events, the word 
migration cannot be treated as null and without meaning; 
and when we give it interpretation and effect, as we are 
bound to do — it must be in the direction in which the con- 
text, reason, and the general intention of the authors point. 

After what has been said we can hardly doubt, that this 
general intention was to keep the territories and new states 
altogether free from the bane of negro slavery: or, if it 
should be necessary to permit its existence in any, to pre- 
vent all addition to it there, from without. To compass 
this end, it was indispensable that the federal government 
should be invested with the power to control the internal 
transportation of slaves — to hinder the introduction of them 
into the new states from the old. As it cannot be conceived 
why the faculty should have been reserved to Congress, of 
prohibiting at once the importation or migration of slaves 
into the territories and new states, unless it were with a 
view to shut out slavery from them altogether, or pre- 
vent its increase, — so it cannot be conceived that, for this 
purpose, it could have been deemed sufficient, merely to 
guard against the importation of slaves into them from 
abroad. Most of the territories and new states which the 
Convention had in view, were inland, and slaves could not 
be imported into them, but through the old states; which 
last circumstance — owing to the facility of concealing be- 
yond detection, the foreign origin of the slaves introduced 
■ — would render futile any prohibitory regulations as to mere 
importation. In this way we are furnished with a natural 
and satisfactory explanation of the intent and uses of the 
term migration. 

All must admit that the federal government possesses 



the power of suppressing the transportation of slaves, yof 
sale, from one state to another, as well as from a state to 
a territory. The turn of the clause of the Constitution res- 
pecting the prohibition of importation, implies th^ admis- 
sion of a previous general power in the federal govern- 
ment to that effect. But this general power was understood 
to arise out of the other expressly given, of regulating com- 
merce with foreign nations.* As the power of regulating 
commerce " between the several states," is also expressly 
given, it included in the same manner, that of prohibiting 
the commerce in slaves between those states. 

Other reasons besides that of securing the new states and 
territories from one of the worst of ills, may be suggested 
for the grant to Congress, of the power of suppressing 
the internal transportation of slaves for whatever general 
purpose. The Convention can be supposed to have felt a 
wish to prevent any occasion being given, for the greater 
activity of that internal trading in human flesh, the negrO- 
driving, which is among the most odious and disgrace- 
ful incidents of the institution of slavery. They could per- 
ceive that, if the removal of slaves to the new states, were 
not liable to entire suppression, these would form additional 
lucrative marts serving to incite the traffic just mentioned, 
and its twin practice — kidnapping. They could not fail, 
moreover, to be sensible how much the opening and con- 
tinuance of such vents would, by holding out temptations 
to cupidity, obstruct that which must have been dear to 
their hearts — emancipation of individuals in the old states; 
— how many additional human beings destined, otherwise, 
to be liberated from their shackles, would be offered as vic- 
tims upon the new altars raised to remorseless and insatia- 
ble avarice. 

The Convention must have been desirous, also, that the 
internal traffic, as it prevailed between the old states, should 
be liable to suppression or regulation, even at the expiration 
of twenty yearsj and it was through the Federal Govern- 
ment alone that they could expect to see this accomplished. 

* See Debates in the Virginia Convention, p. 323. Note F. 



22 

The restriction upon Congress in this case, for the same term 
as in that of the prohibition of importation, can be accounted 
for without difficulty. South Carolina and Georgia who in- 
sisted upon it in the one, had the same motive for requiring 
it in the other. This motive was to retain the faculty of increas- 
ing or replenishing their siock of negroes, from every source. 
Those states w^ere the receptacles of the slaves removed 
from the others; they were the goals of the negro-driver 
and kidnapper, and would not consent to the immediate 
stoppage of any channel of supply. Another operative con- 
sideration on this head has been suggested. The price of 
slaves might be seriously affected by a sudden prohibition 
of the internal transportation of them; and against such an 
inconvenience, adeq ate precautions were to be taken. 

Admitting this power to be given by the Constitution, if 
it had never been exercised or asserted by Congress, it 
would not on that account, as every constitutional lawyer 
knows, be the less real, or proper to be exercised. But it 
has, in fact, been asserted. Witness the following extract 
from the act of Congress, creating the territory of Orleans. 
" It shall not be lawful for any person or persons to import 
or bring into the said territory, from any port or place 
within the ihnits of the United States, or to cause or procure 
to be so imporu-d or brought, or knowingly to aid or assist 
in so importing or bringing, any slave or slaves which shall 
have been imported since the first dav of May, one thou- 
sand seven hundred and ninety-eight, into any port or place 
within the limits of the United States, or which may here- 
after be so imported from any port or place without the li- 
mits of the United States: And no slave or slaves shall, 
directly or indirectly, be introduced into said territory, ex- 
cept by a citizen of the United States, removing into said 
territory for actual settlement, and being, at the time of 
such removal, bona fide oxvner of such slave or slaves." 

These provisions of the act above mentioned, deserve 
particular attention. The importation of slaves into the ori- 
ginal states was not, and, as we know, could not be, pro- 
hibited by Congress until the year 1808. Yet that body 
prohibited the introduction into the territory of Orleans, 



23 

from any port or place -within the limits of the United States, 
of all slaves imported into any of the states since the year 
one thousand seven hundred and nintty-eight. It had, of 
course, equal power to enact a similar prohibition as to 
slaves imported since any antecedent date. We find, like- 
wise, that it denied altogether to all but persons of a particular 
description — citizens of the United States having particular 
views — the faculty of introducing slaves, from any quarter, 
into the territory of Orleans; thereby asserting in theory an 
absolute control over the matter of internal transportation 
to whatever domain of the Union. It expressly interdicted 
the internal traffic, negro trading and driving, in relation to 
a territory where it allowed slavery itself to continue. See- 
ing that the Congress of 1804, sought to destroy the de- 
testable traffic, as regarded Louisiana, we may the more 
readily believe that the federal convention of 1787, wished 
to have it destroved as to Georgia and South Carolina; or 
rather, abolished univetsallv. 

In proof of the intention of the Convention to invest Con- 
gress with a power over internal transportation, and to ex- 
clude slavery altogether from the new states, we have, not 
only the considerations which I have urged, but direct tes- 
timony of the most decisive character. In the letter of Mr. 
Jay above cited, this venerable person, one of the authors of 
the Federalist, says — " To me the constitutional authority 
of the Congress, to prohibit the migration and importation 
of slaves into any of the states, does not appear question- 
able." The celebrated James Wilson, who passed from the 
Federal Convention, after having acted a conspicuous part 
there, to the Convention of Pennsylvania, assembled to de- 
cide on the adoption or rejection of the constitution, held 
this language in the latter body. " It is with much satisfac- 
tion I view this pov/er in the general government, whereby 
they may lay an interdiction, after the year 1 808, on this re- 
proachful slave trade; but an immediate advantage is also 
obtained, for a tax or duty may be inforced on such impor- 
tation, not exceeding ten dollars for each person. It was all 
that could be obtained; I am sorry it was no more; but from, 
this I think there is reason to hope, that yet a few years. 



24 

and it will be prohibited altogether; and, in the mean time, 
the new states which are to be formed, will be under the 
control of Congress in this particular; and slaves will never 
be introduced amongst them. 71 * 

If it be beyond question, that the Convention sought to 
prevent the Union from being made subservient to the dif- 
fusion and confirmation of slavery, it is no less certain that 
they regarded the constitution which they framed, as like- 
ly to prove ministerial, or at least highly propitious to 
universal abolition. To render it so, as far as possible, 
consistently with the attainment of the indispensable object 
of Union, was a manifold duty of which, as I have inti- 
mated, they could not but be fully aware. For that which 
is demonstrable a priori, we have also, as in the case treat- 
ed in the last paragraph, satisfactory external evidence. 
Judge Wilson, on the same occasion on which he used 
the language already quoted from him, expressed himself 
thus: " I consider this power given to Congress to pro- 
hibit the importation of slaves, as laying the foundation for 
banishing slavery out of this country; and though the period 
is more distant than I could wish, yet it will produce the 
same kind, gradual change, which was pursued in Pennsyl- 
vania." In another of the debates of the Pennsylvania con- 
vention, the same high authority spoke in a yet more san- 
guine, and positive strain. " I confess that I little thought 
that this part of the federal system (that which relates to the 
prohibition of the migration and importation of slaves) 
would be excepted to. I am sorry that it could be extended 
no further; but so far as it operates, it presents us with the 
pleasing prospect, that the rights of mankind will be ac- 
knowledged and established throughout the Union. If there 
was no other lovely feature in the constitution, but this one, 
it would diffuse a beauty over its whole countenance. Yet 
the lapse of a few years! and Congress will have power to 
exterminate slavery from within our borders. f How would 

* "Debates of the Convention of the State of Pennsylvania on the Constitu- 
tion. Taken accurately in short-hand by Thomas Lloyd." 

\ He perhaps expected that, at the expiration of the twenty years, Congress 
would be formally invested by an amendment of, the constitution, with a direct 
power to this effect. 



25 

such a prospect expand the breast of a benevolent and phi- 
lanthropic European ? Would he cavil at an expression? 
catch at a phrase?" &c. 

In Virginia, whose delegates to the federal convention 
were among the ablest, most diligent, and useful labourers 
in the formation and establishment of the constitution-— it 
was particularly urged against the new system by those who 
wished for its rejection, that it had a latent competencv, or 
irresistible tendency, to the emancipation of their slaves. 
And we find governor Randolph, in the debates of the Vir- 
ginia convention, holding this remarkable language: " That 
honourable gentleman (Patrick Henry) and some others, 
have insisted that the abolition of slavery will result from 
this constitution, and at the same time have complained 
that, (by the postponement of the prohibition of the slave 
trade) it encourages the continuation of slavery. The in- 
consistency proves in some degree the futility of their ar- 
guments. But, if it be not conclusive to satisfy the commit- 
tee that there is no danger of enfranchisement taking place, 
I beg leave to refer them to the paper itself. I hope that 
there is no one here, who, considering the subject in the 
calm light of philosophy, will advance an objection disho- 
nourable to Virginia; that at the moment they are securing 
the rights of their citizens, an objection will not be started, 
that there is a spark of hope, that those unfortunate men 
now held in bondage, may, by the operation of the general 
government, be made free." 

The generous sentiment here conveyed by Governor Ran- 
dolph, was, we know, common to the Virginia delegation 
in the federal convention, and to others of the most dis- 
tinguished men of that state: the abolition of slavery was, 
with them, a favourite object;* and they relished the new 
scheme of union the more, from the facilities which it 
might afford — from its studied conduciveness — to that end. 
Such of them as thought this a matter to be left to the 
option and exclusive legislation of the states, were easy, 
however, because they saw that there was no power of at- 
tempting or effecting it, lodged in the federal government, 

* See Note G. 
D 



26 

by the Constitution; — that from the mode of representation 
an<i taxation, Congress could not, as had been objected, lay 
smh a tax as would amount to manumission; — that the se- 
veral states were for ever secured, both by the tenor of the 
instrument and general circumstances, from any interference 
or dictation in their internal concerns in this matter, on the 
part of the federal government, though it would possess an 
unlimited power, over whatever was exterior, as to slavery. 
Those of the southern politicians who were averse from 
abolition at any period, or by any mode, had indeed cause 
to look upon the new system with a suspicious eye: for, it 
no where sanctions the idea of a right of property in human 
beings; it does not recognize slavery as an object of direct 
protection. 

With what reluctance the major part of its framers sub- 
mitted to impose the twenty years restriction upon it as to the 
slave trade, I have sufficiently indicated. They regarded as a 
concession even the following clause of the Constitution. " No 
person held to service or labour in one state, under the laws 
thereof, escaping into another, shall in consequence of any 
law or regulation therein, be discharged from such service 
or labour; but shall be delivered up on claim of the party 
to whom such service or labour may be due."* Yet, the 
continuance of slavery in those of the original states v ho 
might choose to maintain it, being submitted to, — the mat- 
ter of abolition being left entirely with them,— an arrange- 
ment like the one here quoted, followed of course, and vva6 
required by the interests of the whole confederacy. Ante- 
cedently, that is, from the date of tht Revolution, if a siave 
eloped to any of the states where abolition had been de- 
clared, he was emancipated by their laws, " the laws of the 
states," said Mr. Madison,f "being uncharitable to one 
another in this respect." Such a condition of things could 
not have been allowed to continue, without affecting too 

• It should be noted that, by this clause, it is only a state which is bound, under 
the Constitution, to deliver op fugitives of the description mentioned The au- 
tho.uies of a territory would be at liberty to refuse, without a special law of the 
F< deral government prescribing the contrary, such as that of the 12th February 
1 7W. 

f debates of the Virginia Convention. 



27 

sensibly the internal economy of the slave-holding states, 
and endangering the peace and cordiality of the Union. So, 
with regard to that clause in the Constitution which pledges 
the Union " to protect each of the states, on application of 
the legislature or of the executive, (when the legislature 
cannot be convened) against domestic violence;" within 
which phrase insurrections of the negroes are necessarily, 
and were, no doubt, specially intended to be, included.* 
Here, nothing more is done, than was obviously exacted by 
the common welfare. Such insurrections, in menacing the 
existence of the slave-holding states, menaced that of the 
Union, and the prosperity of its other parts. Thus, what- 
ever countenance can be said to be given to slavery by these 
clauses, whatever recognition made of it, — is but collateral 
and negative; indicative merely of the understanding that 
the slave-holding states were to suffer no molestation or 
detriment in their internal system; and of the inevitable 
policy of guarding the Union itself from the mischiefs to 
which it was exposed from that system. 

There is yet another reference to the slave population in 
the Constitution, which is far from invalidating my theory, 
and in which the framtrs look at the monster, askance, and 
do not seem to acknowledge its nature or existence. I will 
be understood to mean that clause which apportions u re- 
presentation and direct taxation among the several states,f 

* Mr. Madison, in justifying this clause, in the Federalist, writes thus. "May 
it not happen, in fine, that the minority of citizens may become a majority of 
persons, by the accession of alien residents, of a casual concourse of adventurers, 
or of those whom the constitution of the state has not admitted to the rights of 
suffrage? I take no notice of an unhappy species of population abounding in some 
of the states, who, during the calm of regular government, are sunk beloiu the 
level of men,- but who, in the tempestuous scenes of civil violence, may emerge 
into the human character, and give a superiority of strength to any party with 
which they may associate themselves." 

\ The text of the Constitution is — " Representatives and direct taxes shall 
he apportioned among the several states -which may be included within this 
Union." This mode of expression would seem to embrace all the states in which 
slavery should be permitted, that might at any time be included in the Union; 
but the Convention had in view, in fact, only the original slave-holding states, 
whose concurrence in the Constitution was extremely doubtful The new federal 
system was to go into operation, when ratified by nine states. The ratification 
of eleven was obteiited in the first instance, with the greatest difficulty. North 



28 

according to their respective numbers to be determined 
by adding to the whole number of free persons, including 
those bound to service for a term of years, and exclud- 
ing Indians not taxed, three-fifths of all other per- 
sons" that is slaves. This arrangement was also a matter of 
compromise; the allowing three-fifths of the slaves to be 
virtually represented, was a concession made to the slave- 
holding states, to win them to union; to reconcile them to 
the apportionment of direct taxes according to numbers; and 
to the power vested in Congress over navigation and com- 
merce, from which power those states were averse, but of 
which they have since made the most extensive use, and in 
which they have had most reason to rejoice. The conces- 
sion was at once felt and proclaimed to be great, by their 
delegates; it was acknowledged to be 'nearly so much posi- 
tive gain.*" The nature and estimation of it, I cannot de- 
velcpe better, than bv adopting a representation on the sub- 
ject which has recently been given to us, with the sanction 
of the highest authority, — of a distinguished member of 
the Federal Convention, who not only explains, but bears 
witness. " The present House of Representatives," says 
Mr. King,f M consists of 181 members, which are appor- 
tioned among the states in a ratio of one representative for 
every thirty-five thousand federal numbers, which are ascer- 
tained by adding to the whole number of free persons, three- 
fifths of the slaves. According to the last census, the whole 
number of slaves within the United States was 1,191,364, 

Carolina, Riiodc Island, and New Vork- refused " Neither the intrinsic merits 
of the scheme of government which was thus offered to the American 
reople for ther acceptance," says Judge Marshall in his life of Washington, 
"nor the imposing weight of character by which it was supported, t;ave assurance 
to its advocates that it would be ultimately received. To decide the interesting 
question which agitated a continent, the best talents of the several states were 
assembled (1788) in their respective conventions. So balanced were parties in 
some of them, that even after the subject had been discussed for a considerable 
time, the fate of the Constitution could scarcely be conjectured; and so small, in 
many instances, was the majority in its favour, as to afford strong ground for the 
opinion, that hail the influence of character been remoyed, the intrinsic merits of 
the instrument would not hs\e secured its adoption." 

• See the Addresses of the Southern Members of the Convention to theil 
constituents. 

\ Substance of two speeches delivered in the Senate of the United States 



29 

which entitle the states possessing the same, to twenty re- 
presentatives, and twenty presidential electors more than 
they would be entitled to, were the slaves excluded. By the 
last census, Virginia contained 582,104 free persons, and 
392,518 slaves. In any of the states where slavery is ex- 
cluded, 582,104 free persons would be entitled to elect only 
sixteen representatives; while in Virginia, 582,104 free 
persons, by the addition of three-fifths of her slaves, become 
entitled to elect, and do in fact elect, twenty-three repre- 
sentatives, being seven additional ones on account of her 
slaves. Thus, while 35,000 free persons are requisite to 
elect one representative in a state where slavery is prohibit- 
ed; 25,559 free persons in Virginia, may and do elect a 
representative — so that five free persons in Virginia, have 
as much power in the choice of presidential electors, as 
seven free persons in any of the states in which slavery 
does not exist." 

" This inequality in the apportionment of representatives 
was not misunderstood at the adoption of the constitution — 
but as no one anticipated the fact that the whole of the re- 
venue of the Uniced States would be derived from indirect 
taxes, (which cannot be supposed to spread themselves over 
the several states according to the rule for the apportion- 
ment of direct taxes,) it was believed that a part of the 
contribution to the common treasury would be apportioned 
among the states by the rule for the apportionment of re- 
presentatives. — The states in which slavery is prohibited, 
ultimately, though with reluctance, acquiesced in the dis- 
proportionate number of representatives and electors that 
was secured to the slave-holding states. — The concession 
was, at the time, believed to be a great one, and has proved 
to have been the greatest which was made to secure the 
adoption of the Constitution." 

" Great, however, as this concession was, it was definite, 
and its full extent was comprehended. It was a settlement 
between the original thirteen states. The considerations 
arising out of their actual condition, their past connexion, 
and the obligation which all felt to promote a reformation 
in the Federal Government, were peculiar to the time and 



30 

to the parties; and are not applicable to the new states, 
which Congress may now be willing to admit into the 
Union." 

The allegations of Mr. King are all-sufficient; but, inde- 
pendently of thtm, the simple exposition of the case would 
sh( w, that it could not have been the intention of those 
who conceded, nor the expectation of thost who acquired 
so great an advantage, that it should be communicated 
be\ ond the original parties. This certainly is a case in 
which we must apply the rules of interpretation — that the 
known reason of a disposition should regulate its applica- 
tion; and that an intention is always to be presumed contra- 
ry to the one which would lead to a subversion of justice 
an<; equitv. Were we to assume that, in the article in ques- 
tional' the constitution, slaves were referred to in the light of 
property alone, the dispositions of that article would appear 
still more unequal and onerous for the non slave-holding 
states. This point is made abundantly clear in the following 
observations of the eminent statesman just named. 

" The rule for apportionment of taxes is not, necessarily, 
the most equitable rule for the apportionment of represen- 
tatives among the states; property must not be disregarded 
in the composition ol the first rule, but frequently is over- 
looked in the establishment of the second. A rule which 
might be approved in respect to taxes, v/ould be disapprov- 
ed in resp« ct to representatives: one individual possessing 
twice as much property as another might be required to 
pay double the taxes of such other; but no man has two 
votes to another's one; rich or poor each has but a single 
vote in the choice of representatives." 

" If three-filth of the slaves are virtually represented, or 
their owners obtain a disproportionate power in legislation, 
and in the appointment of the President of the United 
States, why should not other property be virtually repre- 
sented, and its owners obtain a like power in legislation, 
and in the choice ot the President. Property is not confined 
to slaves, but exists in houses, stores, ships, capital in trade 
and manufactures. To secure to the owner of property in 
slaves greater political power than is allowed to the owners 



31 

of other and equivalent property, seems to be contrary to 
our theory of the equality of personal rights, inasmuch as 
the citizens of some states thereby become entitled to other 
and greater political power, than the citizens of other 
states." 

" The equality of rights, which includes an equality of 
burdens, is a vital principle in our theory of government, 
and its jealous preservation is the best security of public 
and individual freedom; the departure from this principle in 
the disproportionate power and influence, allowed to the slave- 
holding states, was a necessary sacrifice to the establishment 
of the Constitution. The effect of this concession has been 
obvious in the preponderance which it has given to the 
slave-holding states, over the other states. Nevertheless, it 
is an ancient settlement, and faith and honour stand pledged 
not to disturb it. But the extension of this proportionate 
power to the new states would be unjust and odious." 

Upon the face of the Constitution, however, it would not 
appear, that the slaves were referred to at all in the light of 
property. The comprehension of them within the rule of 
apportionment as to representatives and taxes, does emphati- 
cally hold them forth as persons, in contradistinction to pro- 
perty. Mr Madison, in treating of this arrangement, in the 
Federalist (No. 5-t), confirms my general doctrine. ** Let," 
he says, u the compromising expedient of the Constitution 
be adopted, which regards the slaves as inhabitants, but as 
debased by servitude below the equal level of free inhabi- 
tants; -which regards the slave as divested of two-fifths of the 
man" 

I would not be thought to deny that the slaves were, by 
postulation, received on all sides as property, in the discus- 
sions and internal adjustments of the convention; but what 
I would insist upon is, that the idea is not tangible in the 
Constitution; and the moral of the fact that the framers thus 
studiously withheld it from that instrument, is strengthen- 
ed by the admission that they acted upon it among them- 
selves in their deliberations. They intended that it should 
not operate further than it had done in the private compro- 
mise. It was discarded, with a sort of shame and disgust; 



32 

as the foul material would be from the pure and wholesome 
liquor, to the manufacture of which it had been essenual as 
an instrument. 

A descendible property from father to son, of the human 
being and all his offspring in perpetuity, was what, as a 
principle, the majority of the framers of the constitution 
were more ready to consign formally to execration, than 
to sanction or sfielter in any manner.* They believed it 
to be utterly repugnant to the laws of God, to the rights and 
destinies of human nature, and to the welfare of society; 
and as a practice or institution they knew it to be capable 
of no defence but that of necessity. They- could hardly have 
thought of giving it countenance or diffusion, while, in the 
same act, they proscribed bills of attainder, laws working 
corruption of blood, or forfeiture beyond the life of the 
person attainted. All of them were aware of the oppres- 
sive, guilty manner in which our negro slavery commenc- 
ed; of the cruel means necessary to enforce its continu- 
ance, and of the mischiefs and dangers incident to its 
increase.f We should dishonour and slander them, in im- 
puting to them any other intention than that of confining 
it to the narrowest limits. The utmost that can be said of 
the constitution on this point, is that it tolerates slavery in 
the old states. To argue that it therefore permits its extension 
elsewhere, is surely bad logic. The Convention can be sup- 
posed to have tolerated in the old states what they deemed 
a great political and moral evil, onlv because they had no al- 
ternative, and because it was inevitable there. They cannot 
in decency or reason, be supposed to have meant to autho- 
rize it in cases in which this proceeding was not unavoida- 
ble, and in parts of the American territory whence it could, 
by any possibility, be excluded. 

If the spirit and drift of the constitution, on this subject, 
be such as I have represented them to be, the federal go- 
vernment has, properly, no power to permit slavery in a 
territory of the Union: if slavery be that iniquity and evil 
which reason, experience, and authority concur in pronounc- 
ing it, the federal government has no moral competencv to 

* Note H. f Note I 



33 

permit it there, unless the toleration of it be exacted by the 
probability of its abolition producing a greater degree of 
injustice and mischief. Slaves cannot be legally held in 
any such territory, but by virtue of a positive law of the fe- 
deral government. Slavery could find no shelter under the 
constitution. The courts or justice, in the absence of such a 
law, would be obliged to declare and protect the freedom of 
the negro who should choose to withdraw from bondage, 
and refer to them the decision of his rights. The doctrine 
laid down by Lord Mansfield in the case of the negro Somer- 
set in England, would be as applicable and ought to be as 
efficacious here, in the one under consideration. " The state 
of slavery is of such a nature, that it is incapable of being 
now introduced by courts of justice upon mere reasoning, 
or inferences • from any principles natural or political; it 
must take its rise from positive law; the origin of it can in 
no country or age be traced back to any other source. A 
case so odious as the condition of slaves must be taken 
strictly.* , 



34 



SECTION It 

Having, ns I think, fully ascertained, that the spirit and 
ten ■ r oi ihe Federal Constitution authorize and require in 
genu 1, the exclusion of slavery from the Territories and 
.new States, 1 will proceed to examine the practice of the 
Federal Government on the subj ct; biinging into view, 
however, in the first place, two comprehensive powers with 
which it is connected. These powers are conveyed in the fol- 
lovung clauses of the Constitution:— ** The Congress shall 
have power to dispose of, and make all needful rules and regu- 
lations respecting the Territory or other property belonging 
to the United Siates."— " New States may be admitted by 
Congress into the Union." 

In all the political confederations which have existed, of 
a character any way similar to our own, an absolute control 
over the common territory has been vested in the common 
government. It resulted with us, as in every other instance, 
from the very nature of the case. The subject of the exist- 
ence or establishment of slavery in the territories belonging 
to the Union, necessarily fell within the discretion commit- 
ted to Congress, as to the administration of their concerns; 
the C onvention not having excepted it out of the general 
discretion, or reserved it for the states. If there had been 
an intention of doing either, the assumption of jurisdiction 
with respect to it, by the Congress of 1787, in their ordi- 
r, nee concerning the North West Territory, would have 
inc uced the Convention to express that intention positively. 
This ordinance was published two months before the con- 
stitution was computed. But, on this point, nothing need 
be added to the exposition in Mr. King's speeches. "■ The 
power to make all needlul regulations includes the p< 
to d< tc -rmine what regulations are needful; and if a regu- 
1 tion prohibiting slavery within any T< rritory of the Uni- 
ted Statts, be, as it has been, deemed needful, Congress pos- 
sess ihe power to make the s iiiir; and moreover to pass 
all laws necessary to carry this power into execution." 



35 

The article of the constitution which provides that "new 
stat. s may be admitted by Congress into the Union," gives, 
like the other concerning the administration of the territo- 
ries, an unlimited discretion It is left to the option of Con- 
gress to admit or not to admit, and to decide as to the time, 
terms, and circumstances of admi c sion. There is no restric- 
tion; and this arrangement is a kind of corollary to the inde- 
finite power of legislation over the Territories. The autho- 
rity to admit or reject at pi asure involves as concentric, 
that of prescribing terms of admission*— such, it being 
understood, as do not place the new state at variance in its 
institutions or condition, with the spirit and demands of 
the federal constitution. To these and to the la > s of morality, 
there is an implied subjecti n in Congress, as to the exer- 
cise of whatever power is given to it by the Constitution. 
Thus, it could not make tht- establishment of slaver) a 
term of admission. The Constitution nowhere provides that 
the rejection of slavery shall not be imposed as such; and if 
the framers had intended slavery co be an exception on this 
score, they would have expressly reserved it, after seeing 
its perpetual abolition prescribed by the ordinance of 1787, 
to all the states which might be formed out of the North 
"West Territory. 

There could be no external reason for excepting the pro- 
hibition of slavery from the list of lawful conditions, other 
than this — that the power of establishing it was an indefea- 
sible right of sovereignty, more sacred and vital than the 
power to coin money, to make uar, to lay taxes, or any of 
the other great attributes which we find surrendered to the 
federal government in the constitution, or required to be re- 
linquished in the acts of Congress creating the new states! 
To establish slavery, to tolerate it even, without necessity, 
amounts to the p rpetration of a crime, and a mischief; which 

* Cuius est dare, ejus est disponere is the well known maxim of the common 
law, as well as of general jurisprudence. All the political confederations whether 
of ancient oi- modem times, it. admitting new members, .exercised Che n.c.ssary 
right of prescribing terms. Mr Madison notices, in the Federalist (No. 18), that 
"when Lacedemou was brought into the Achwau league, it was attended with 
■the abolition of the institutions and law s of Lycai 6 us, and an adoption of those of 
the Aeha;aus." 



36 

has never been understood to be matter of right for any 
moral agent; and such is a state.* Reason would teach that 
if there be any incapacity, under which Congress could re- 
quire a state to place itself, as a condition of admission to 
this political family, it would be that of organizing within 
its bosom a permanent violation of human rights and divine 
law; an institution of the most unsightly, odious, and per- 
nicious character, in the disgrace and disadvantage of 
which all the Confederacy must share. Could we doubt 
the power of Congress, under this clause of the Constitution, 
to require of a state disposed and prepared to cherish, and 
to entail upon its population, some loathsome and virulent 
epidemic, menacing to its neighbourhood and reproachful to 
the v. hole American people — that it would for ever renounce 
the nuisance on entering into the Union? If Canada, on the 
supposition that she were free to regulate her own destinies, 
shouid solicit admission; presenting herself, however, with 
an rstablished religion and a system of villeinage— would 
Congress have no alternative but that of rejecting her alto- 
gether, or admitting her with those institutions, which are 
nowhere expressly interdicted by the Constitution to a mem- 
ber of our confederacy? In fact, it is abundantly evident, both 
from the text of the Constitution and the reason of the case, 
that the Federal Government is not only competent but 
bound, to obtain, previously to exercising the power of ad- 
mitting a new State, every such modification of its being, as, 
without interfering with any provision of the Constitution, 
shall render it a more safe, exemplary, and efficient mem- 
ber of the Union. 

The mode which has been adopted in some quarters, of 
arguing against the existence of this power of imposing con- 
ditions on new States, by supposing the gross abuse of it, 
will not succeed with any sound intellect. Abuses are inci- 
dent to every trust of which a bent ficial use can be made. 
M In every political institution," says the Federalist,! u a pow- 
er to advance the public happiness, involves a discretion which 
may be misapplied and abused. In all cases where power is 
to be conferred, the point first to be decided is, whether 

•See note J. t N °-*l- 



37 

such a power be Becessary to the public good; as the next 
will be, in case of an affirmative decision, to gu .rd as effec- 
tually as possible, against a perversion of the po-ver to the 
public detriment." This is done, as to the power in ques- 
tion, in the very tenor and dispositions of the Constitution, 
by which Congress must necessarily be limited in the exer- 
cise of it. The proposition to a new state, of terms inconsist- 
ent with the palpable aims or specific injunctions of the con- 
stitution — the refusal to impart the real rights and benefits 
for which it stipulates — will never be hazarded, as success in 
the attempt would obviously be hopeless. To use the lan- 
guage employed by General Hamilton with respect to an- 
other supposed irregularity, — " an experiment of this nature 
would always be dangerous in the face of a Constitution in 
any way competent to its own defence, and of a people en- 
lightened enough to distinguish between a legal exercise and 
an illegal usurpation of authority." On this point of the ob- 
jections raised in this instance, on the ground of possible 
abuse, I need say nothing more than is contained in the fol- 
lowing passage of the Federalist.* 

"The moment we launch into conjectures about the 
usurpation of the Federal Government, we get into an unfa- 
thomable abyss, and fairly put ourselves out of the reach of 
all reasoning. Imagination may range at pleasure, till it gets 
bewildered amidst the labyrinths of an enchanted castle 
and knows not on which side to turn to esc ape from the ap- 
paritions which itself has raised. Whatever may be the li- 
mits, or modifications of the powers of the Union it is 
easy to imagine an endless train of possible dangers; and by 
indulging an excess of jealousy and timidity, we may bring 
ourselves to a state of absolute scepticism and irresolution. 
I repeat here what I have observed in substance in another 
place, that all observations, founded upon the danger of 
usurpation, ought to be referred to the composition and 
structure of the government, not to the nature and extent 
of its powers. The state governments, by their original con- 
stitutions, are invested with complete sovereignty. In what 

* No. 31. 



38 

does our security consist against usurpations from that 
quarter? Doubtless in the manner ot their formation, and in 
a clue dependancc of those wh > are to administer them upon 
the people. If the proposed construction of th, Federal Go- 
vernment be found, upon an impartial examination of it, to 
be such as to afford, to a proper extent, the same species of 
security, all apprehensions on the score of usurpation ought 
to be discarded." 

The practice of the Federal Government has been in con- 
formity with the doctrine maintained in my first Section, and 
has established it, as far as invariable practice can be suppos- 
ed to furnish the true interpretation and direct the application, 
of any part of the Constitution. The ordinance of 1787, re- 
specting the NorthWestern Territory, exemplifies it through- 
out. And this ordinance is to be quoted as the work of the pre- 
sent Federal Government. It was in the eye and intendment 
ol the Convention, when they gave the general power to 
admit new States; it was formally re-enacted by the first 
Congress under the Constitution, composed in great part of 
the framers of that Constitution. It is referred to as the ba- 
sis of every act of the present government organizing a I er- 
ritory or creating a State. The preamble of the act just 
mentioned, of the first Congress (approved August 7, 1789) 
deserves particularly to be noticed as to my subject. It is 
of this tenor: — " Whereas, in order that the ordinance of 
the United States in Congress assembled, for the govern- 
ment of the Territory North West of the River Ohio, may 
continue to have full effect, it is requisite that certain provi- 
sions should be made, so as to adapt the same to the present 
Constitution of the United States." Now, the provisions 
which follow, do not touch the articles of compact imposed 
in the ordinance; that prescribing the abolition of slavery 
included: and hence, we have the solemn opinion of Con- 
gress, that an act (which it made its own) imposing this 
and other material restrictions upon new States, was still 
" adapted to the constitution." " There is no recollection," 
says Mr. King " of an opposition from any of the Southern 
St.ues to the act of confirmation passed by the first Con- 
gress." 



39 

In the act of Congress (approved April 30, 1802) "to 
enable the people of the Eastern Division oi the Territory- 
North West of the Ohio, to form a constitution and state 
government, and for the admission of such state into the 
Union, on an equal footing with the original states," it is 
prescribed as a condition that " the constitution and state 
government shall be republican and not repugnant to the or- 
dinance of 1787:" and the first section of the act declares 
that the state when formed shall be admitted into the Union, 
u upon the same footing with the original states in all re- 
spects whatever." The act (approved April 19, 1816) to 
enable the people of the Indiana Territorv to form a con- 
stitution and state government, employs the same formule 
as to the footing on which the new state would be admit-.td, 
and imposes also a perfect conformity to the ordinance of 
1787, "excepting only so much of the articles of the said 
ordinance as relate to the boundaries of the states to be 
formed North West of the Ohio." The making an excep- 
tion more pointedly ratines the conditions which remained. 
—The act to enable the Territory of Illinois to form a con- 
stitution, &c. and providing for its admission into the 
Union, also requires that the constitution shall not be re- 
pugnant to the ordinance; and the Resolution of Congress 
for the admission of the state of Illinois declares it to be 
admitted " on an equal footing with the original states in 
all respects whatever." In all the acts concerning the states 
formed out of the Territory North West of the Ohio, be- 
sides the restrictions laid upon them by the reference to the 
ordinance, there are others directly imposed, affecting ter- 
ritorial rights, and having no relation to any requisition of 
th; constitution. 

Thus, in the case of three states, restrictions of this na- 
ture were imposed, especially the perpetual prohibition of 
slavery, while in the same breath it was declared, that the 
states v.- ere to be admitted into the Union upon an equal 
footing with the original states in all respects whatever. 
A w do not find that any incongruity was ever suspected 
or all< ged to exist between this declaration, and the clauses 
of the acts which prescribed the restrictions; or, that a com- 



40 

plaint was ever preferred, in or out of Congress, of an in- 
fringement of the rights, liberties, or independence of the 
states of Ohio, Indiana, and Illinois. The people o>" them 
never discovered that they had an indefeasible right to es- 
tablish hereditary servitude* The act of Congress admit- 
ting the last of them, was passed as late as April 18, 1818, 
with the approbation and concurrence of a number of the 
legislators who compose the present Congress. 

Besides the new states of which I have spoken, six others 
have been admitted into the Union — Vermont, Kentucky, 
Tennessee, Louisiana, Mississippi, and Alabama. As to 
Vermont, since slavery had never existed there and her 
laws proscribed it, no precaution was necessary. Kentucky 
was explored and settled by Virginians; formed a dis- 
trict of Virginia during the revolutionary war, and con- 
tinued such at the adoption of the Federal Constitution. 
"With respect to the negro slavery which prevailed in Ken- 
tucky, it was therefore to be considered as properly no 
more within the reach of the Federal government at any time, 
than that of Virginia. In December 1789, Virginia erected 
the District of Kentucky into an independent state, and in 
February 1791, Congress passed an act declaring that it 
should be admitted into the Union on the first of June 
1792. No terms whatever were made by Congress; but it 
is to be noted that Virginia in erecting the district into " an 
independent state," did impose restrictions upon its sove- 
reignty, which are called in the act " terms and conditions."! 

Tennessee was formed out of territory ceded to the Fe- 
deral Government in December 1789, by the state of North 
Carolina, and was privileged lor the same v< ason as Ken- 
tucky, from molestation on the score of negro slavery. 
North Carolina attached various conditions to her c.ssion, 
and among those which we read in the deed is the follow- 
ing: " That the territory so ceded shall be laid out and 
formed into a state or states, the inhabitants of which shall 
enjoy all the privileges, benefits, and advantages, set forth 

* These states all recognize, in the preamble of their respective constitutions, 
the binding authority of tht- ordinance of 1787, in all its parts, 
f See her " Revised Code." 



41 

in the ordinance of the late Congress for the government of 
the Western Territory of the United States, &c." The deed 
of cession then proceeds thus — " the Congress of the United 
States, on accepting the cession of territory made by virtue 
of this act, under the express conditions hereby specifiedj 
shall at the same time assume the government of the said 
ceded territory which they shall execute in a manner simil ir 
to that which they support in the territory west of the Ohio: 
Provided always, That no regulation made or to be made 
shall tend to emancipate slaves" With regard to Tennessee 
therefore, Congress, besides labouring under a previous, 
implied incapacitv to suppress slavery there, was expressly 
disabled from so doing. It is not to be overlooked, that 
North Carolina, in the extracts which I have just made, 
recognizes and adopts the ordinance of 1787.* 

The states of Mississippi and Alabama were formed out 
of territory ceded to the United States by Georgia and 
South Carolina. The " Articles of agreement and cession 
between the United States and the state of Georgia"! con- 
tain the following stipulation. " The territory thus ceded, 
shall form a state, and be admitted as such into the Union, 
as soon as it shall contain sixty thousand free inhabitants, 
or at an earlier period if Congress shall think it expedient, 
on the same conditions and restrictions, with the same privi- 
leges and in the same manner, as is provided in the ordinance 
of Congress of the thirteenth day of July, one thousand se- 
ven hundred and eighty-seven, for the government of the 
Western Territory of the United States, which ordinance 
shall in all its parts, extend to the territory contained in the 
present act of cession, that article only excepted '-which forbids 
slavery." 

In April 1798, Congress passed an act authorizing the 
establishment of a government in the territory in question, 
to be styled ihe Mississippi Territory. The President of the 
United States was authorized by this act '* to establish 
therein a government in all respects similar to that exer- 
cised in the territory north-west of the Ohio, excepting and 

* Tennessee does the same in the preamble to her Constitution, 
f 24th April, 1802. 



42 

excluding the last article (that respecting slavery) of the 
ordinance made lor the government thereof by the Congress 
in 1787." In the same act, the ordinance is again referred to 
as the charter of the rights, privileges, and advantages of 
tht new territory. It is also provided that u no slave or 
sla\ es shall be brought into the said territorv from any port 
or place without the limits of tlv United States." In May 
1812, the portion oi West Florida Hing east of Pearl River, 
west of the Perdido, and south of the 31st degree of lati- 
tude, was annexed by act of Congress, to the Mississippi 
Territorv. In the month of March 1817, this territory was, 
(the consent of Georgia being first asked and obtained,) 
divided into two parts. 

In the month and year last mentioned, Congress passed an 
act authorizing " the inhabitants of the western part of the 
Mississippi Territory to form for themselves a Constitution 
and State Government," and declaring that the said state 
when formed, should be admitted into the Union " upon the 
same footing with the original states in all respects what- 
e\er." The restrictions imposed upon the new state are 
various, and in the margin of the act are entitled " Reserva- 
tions and Conditions of admission into the Union." The 
first of them is, that the constitution and state government 
should not be repugnant to the principles of the ordinance 
of 1787 for the North West Territory, (the sixth article 
being waived) or to those of the Constitution of the United 
States. As there are several principles established in the 
ordinance, which are not prescribed in the Constitution, 
Congress in this case as well as in the others, asserted a 
full discretion in dictating any terms within the spirit of 
that instrument. Mississippi was prohibited to violate reli- 
gious liberty, or invade the rights and liberties of the In- 
dian, which, not being expressly forbidden in the Constitu- 
tion, must be considered quite as precious ind integral a 
right of state sovereignty as that of enslaving the offspring 
of the negro, born as free under the law of nature and the 
Constitution, as the Indian. In the same month, (March 3d, 
1817) Congress erected the eastern part of the Mississippi 
Territory into a separate territory under the name of Ala- 



43 

bama, and established for it a government the same as that 
of the former, and modelled upon the ordinance of 1787. 
The resolution of Congress (December 10th, 1817) for ad- 
mitting the state of Mississippi into the Union, " upon an 
equal footing with the original states in all respects what- 
ever," goes upon the ground, that the people of the said 
state, had formed for themselves a constitution and state 
government, republican and in conformity to the principles 
of the articles of compact of the ordinance of 1787." 

In the month of March 1819, an act was passed f o enable 
the people of Alabama to form a constitution and state go- 
vernment, and for its admission as a state into the Union. 
The same language was employed in this instance as in the 
preceding, and it was required, among various conditions, 
that the constitution and state government should be " not 
repugnant to the principles of the ordinance of 1787; as far 
as the same had been extended to the territory by the arti- 
cles of agreement between the United States, and the state 
of Georgia." 

We have thus passed in review four states, which were 
left by Congress to exercise their own will as to the tolera- 
tion of slavery. We have seen that in the case of all of them, 
that body was specially restrained; and in fact, stood to- 
wards- them, as to this matter, in the same relation as to- 
wards the original states out of which they were carved. 
The territories which Georgia, South Carolina, and North 
Carolina consented to subject to the jurisdiction of Congress, 
would not have been ceded but upon the condition exacted 

that slavery should be permitted to continue in them; and 

this institution would, undoubtedly, have continued in the 
same manner, had the United States refused to accept the 
cession on such terms. Nothing, therefore, would have 
been gained by this course, for justice and humanity. A 
simple view of the map will show to any eye, how deeply 
concerned the ceding states were, in keeping things upon the 
old footing as to slavery; and that Congress, in acquiescing, 
pursued a policy almost indispensable 'for their security. The 
patriotic member of the House of Representatives,* who, last 

* Mr. Tallraadge. 



44- 
year, proposed the restriction tending to prevent the esta- 
blishment of slavery beyond the Mississippi, mentioned that 
he had abstained from urging its prohibition in the Alabana 
territory, with a view to the safety of the white population 
of the adjoining states; because, surrounded as that terri- 
tory was by slave-holding states, and with only imaginary 
lines of division, the intercourse between slaves and free 
blacks could not be prevented, and a servile war might be 
the result. 

From the foregoing details, it is clear that, so far, nothing 
can be said to have been done by the federal government, to 
invalidate the force of the precedent established by the 
exclusion of slavery from the states north-west of the Ohio, 
or to countenance its extension. There wasnoopuon in any 
one of the cases last enumerated. 

But we have yet another new state, Louisiana, the cir- 
cumstances of whose probation and admission require to be 
particularly noticed. They will attest that Congress has fol- 
lowed the rule o,f action which I have suggested as the con- 
stitutional and obligatory one— that of effecting every modi- 
fication in the institutions and being of a new state, adapted 
to render it a more reputable, efficient, and homogeneous 
member of the Union. The vast province of which the state 
in question formed only a small part, was ceded to the 
United States, " in full sovereignty" by France, on the thir- 
tieth day of April, eighteen hundred and three. Its situation, 
when the United States took possession of it in 1804, is 
thus accurately represented by Mr. King. _ u It was esti- 
mated to contain 50,000 white inhabitants, 40,000 slaves, 
and 2000 free persons of colour. More than four-filths of 
the uhites, and all the slaves, except about 1300, inhabited 
New Orleans and the adjacent territory: the residue, con- 
sisting of less than 10,^00 whites, and about 1300 slaves, 
were dispersed throughout the country now included in the 
Arkansas and Missouri territories. The greater part of the 
1300 slaves were in the Missouri territory." 

The treaty of cession contained a stipulation in favour of 
the inhabitants, in the following terms. u The inhabitants of 
the ceded territories shall be incorporated in the union of 



45 

the United States, and admitted as soon as possible, accord' 
ing to the principles of the Federal Constitution, to the en- 
jo\ ment oi all the rights, advantages, anci immunities of ci- 
tizens ot the United Slates; and, in the mean time, they 
shall be maintained and protected in the free enjoyment of 
their liberty, property, and the religion which they profess." 
Ot this article Mr. King remarks, that, " though it wants 
precision, its meaning cannot be misunderstood." '* It con- 
stitutes," he says, u a stipulation, by which the United 
States engage that the inhabitants of Louisiana should be 
formed into a state or states, and as soon as the provisions 
of the constitution permit, that they should be admitted as 
new states into the Union on the footing of the other states; 
and before such admission, and during their territorial go- 
vernment, that they should be maintained and protected by 
Congress, in the enjoyment of their liberty, property, and 
religion." 

Another distinguished federal representative from New 
York — whose zeal and exertions in the cause of the na- 
tional honour and interests cannot be too much applauded 
— gave a different interpretation to the article, not unworthy 
of attention: His language was as follows — " The inhabi- 
tants of the ceded territory, when transferred from the 
French republic, would have stood, in regard to the 
United States as aliens. The object of the article, doubt- 
less, was to provide for their admission to the rights of ci- 
tizens, and their incorporation into the American family. 
The treaty makes no provision tor the erection of new states 
in the ceded territory. This was a question of national po- 
licy properly reserved for the decision of those to whom the 
constitution had committed the power. The framers of the 
treaty well knew that the president and senate could not 
bind Congress to admit new states into the Union." There 
is much plausibility in the purport of this exposition. It is 
certain that the extension to the inhabitants, of the protec- 
tion and advantages of the Federal Constitution— of the 
provisions of the ordinance of 1787— would have satisfied 
the mere terms of the article; and we know how strenu- 
eusly it has been contended, by several of those legislators 



46 

who are now eager for the unconditional admission of the 
Missouri Territory into the Union, that the treaty-making 
power is not of virtue to affect the exercise of a great power 
oi Congress.* At all events, the tenor of the article cannot 
be thought to impose more positive obligations and restric- 
tions upon the Federal Government, than the pact of the old 
Congress with the state of Virginia, in respect to the coun- 
tries north-west of the Ohio ceded by her to the Union — 
that those countries should be settled and formed into dis- 
tinct republican states, which should become members of 
the Federal Union, and have the same rights of sovereignty, 
freedom, and independence as the other states." It was not 
thought incompatible with the last of these stipulations, to 
prohibit slavery for ever in those countries; nor with the 
first, to ordain, that " they should be admitted to a share in 
the federal councils" only " at as early periods as might be 
consistent with the general interests of the confederacy.'''' 

To proceed to the legislation of the Federal Government, 
as to the ceded province. In the month of March 1804, 
Congress passed an act "erecting Louisiana into two terri- 
tories and providing for^the temporary government thereof." 
That portion of the province which is now the state of Lou- 
isiana, was declared to constitute a territory of the United 
States under the name of the Territory of Orleans; and the 
residue, a district by the name of the District of Louisiana. 
The "provision" made for the government of these divi- 
sions, was not, as in the case of the territory ceded by the 
southern states, the immediate extension to them of the 
ordinance of 1787, but a svstem of peculiar regulation fitted 
to mould the inhabitants by degrees to the system of that 
ordinance. Some particular acts of the Federal Government 
were selected, and declared to have full force in the new 
territories; among them, that of March 1794 prohibiting 
the carrying on the slave trade from the United States; and 
another (ol February 28th, 1803) prohibiting the importa- 
tion of slaves into states whose laws interdicted their ad- 
mission. The importation of slaves from abroad was like- 

* See the Debates in Congress on this subject (1814.) Also, the opinions of 
Mr. Madison and Mr. George Nicholas, in the Virginia Debates, p. 560, 365. 



47 

wise directly forbidden, and those remarkable dispositions 
made to which I have already had occasion to advert, re- 
specting the exclusion of a certain description of slaves 
brought from any place within the limits of the Union. It 
seems to have been an object with Congress, to prevent the 
province from becoming a mart for the traffic either external 
or internal in human flesh. 

In March 1805, Congress passed another act " providing 
for the government of the territory of Orleans." On this 
occasion, a government was given to it "in conformity with 
the ordinance of 1787," and it was enacted that '* from and 
after the establishment of the said government, the inha- 
bitants of the territory should be entitled to and enjoy all 
the rights, privileges, and advantages secured by the said 
ordinance, and then enjoyed by the people of the Missis- 
sippi Territory." Here is what might be interpreted into a 
fulfilment of the stipulation of the treaty — that they should 
be admitted as soon as possible to the enjoyment of all the 
rights, advantages, and immunities of citizens of the Uni- 
ted States.* The sixth article of the ordinance (that which 
abolishes slavery) was " excluded from all operation within 
the territory of Orleans." The circumstances were also 
specified, under which the territory should be admitted as 
a state into the Union " upon the footing of the original 
states in all respects whatever." Ot these circumstances one 
was, that the Constitution which it might form should be 
consistent with the ordinance of 1787, so far as the same 
was made applicable to the territorial government. 

In the month of February 1811, an act was passed to en- 
able the people of the territory' of Orleans to form a consti- 
tution and state government, &c. The language of the first 
section of the act is " and they are hereby authorized to 
form for themselves a constitution and state government, 
and to assume such name as the\ mav deem proper, under 
the provisions and upon the conditions hereinafter men- 
tioned." Among these conditions are the following — the 
constitution shall contain the fundamental principles of civil 
and religious liberty; " after the admission of the said terri- 
tory of Orleans as a state into the Union, the laws which 

* See note K. 



48 

such state may pass shall be promulgated and its records of 
every description shall be preserved, and its judicial and 
legislative written proceedings conducted, in the language 
in which the laws and the judicial and legislative written 
proceedings of the United States are now published and 
conducted." To these restrictions are added the usual ones 
respecting the waste and unappropriated lands, the taxation 
of certain property, the freedom of the rivers, Stc." — none 
of which are specified in any regulation of the Federal Con- 
stitution. 

Louisiana having accepted the conditions proposed, and 
formed a constitution, an act was passed by Congress in the 
month of April 1812, for the admission ofr the State into 
the Union. 

By the first section of the act, Louisiana was declared to 
be admitted into the Union on an equal footing with the 
original States in all respects whatever, provided " it should 
be taken a condition upon which the said State was incor- 
porated in the Union, that the river Mississippi and the 
navigable waters leading into the same and into the Missis- 
sippi should be forever free without duty, toll, &c. and that 
the above condition and also all other the conditions and 
terms contained in the act of February 1811, should be 
considered, deemed, and taken, fundamental conditions and 
terms, upon which the said State was incorporated in the 
Union." 

It must be evident from the preceding extracts, that if 
Congress did not impose upon the State of Louisiana the 
condition of excluding slavery, it was not from a doubt of 
their constitutional competency, or a belief that they were 
disabled by the article of the treaty with France. This ar- 
ticle, though it might be understood to deprive them of 
the power of refusing to receive the inhabitants of the 
province into the Union, upon any terms, yet consigned 
the mode and terms to the same discretion by which they 
had been determined in other casts. As to these points, it 
clearly leaves the question on the original footing. No politi- 
cian could suppose that the clause in the article — " hecording 
to the principles of the Constitution"— had a signification im- 



» 49 

r 

* plying that the Federal Government would, in any instance, 
& depart from those principles. This would follow, however, 
?| if it were meant as a limitation upon that government, and 
-| not merely as one upon the right stipulated for the inhabi- 
ts tants of the province, of being " admitted to the enjoyment 
I? of all the rights, advantages and immunities of citizens of 
'A the United States." It was intended to acknowledge the 

! subordination of that right, to the powers on the subject 
vested generally in Congress by the Constitution, and re- 

H cognized in uniform practice; of which powers that body 

H was to judge, and in which the imposition of conditions 

Of was included. 

Li Certainly, the idea was not entertained, that the in- 

Pl habitants of the States north-west of the Ohio had not 

a 1 

fig been admitted into the Union, " according to the prin- 

»" ciples of the Constitution;" or had been denied any of the 

V ** eights, advantages, or immunities of citizens of the United 

|lf States," because the prohibition of slavery had been pre- 

W scribed to them as a condition of their admission. It never 

/: was understood — it never had been pretended— that any 

II principle of the constitution required the reservation of the 

* j power of maintaining slavery, to the new States; or that ci- 
L| tizens of the United States, as such, did or could hold slaves. 
P| These were known to be legally held only under the autho- 
H rity of state governments. If it were the right of a citizen 
M of the United States, as such, to hold them, then they might 
H be legally held as well in New York or Pennsylvania, as 
L,\ Georgia; since a federal right could not be impaired by the 
W laws of any member of the confederacy. The abolition acts 
H of the eastern States would be rendered altogether nugatory. 
/-. If Congress could not suppose that the obligation of ad- 
H mitting the inhabitants of the province of Louisiana, to the 
Ch rights of citizens of the United States, in the mariner con- 
1] formable to the principles of the constitution, carried with it 
|p the obligation of allowing hereditary bondage to be perpe- 
m tuated among them, — that assembly could as little ascribe 
I] this virtue to the last clause of the article above mentioned, 
**| which stipulates for them, "the free enjoyment of their li- 
|j berty, property, and the religion which they profess. I have 
I! s'aid enough to show that it is not by a reference to the Con- 



50 

stitution, to reason, or to the law of nature, the word pro- 
perty could be understood to embrace slaves. Nor would 
it be, by a resort to treaties, of which the clause in ques- 
tion is but a common, vague formula, when inhabited ter- 
ritories are transferred from one sovereign to another. " As 
all nations," says Mr. King, very justly,* " do not permit 
slavery, the term property, in its common and universal 
meaning, does not include or describe slaves. In treaties, 
therefore, between nations, and especially in those of the 
United States, whenever stipulations respecting slaves were 
to be made, the word " negroes" or u slaves" has been em- 
ployed, and the omission of these words in this clause, in- 
creases the uncertainty whether slaves were intended to be 
included." 

Taking then the word property as one of uncertain im- 
port in this case, and premising the incontestible maxim that 
the toleration of slavery is, in general, unlawful and inhu- 
man, let us see what received rules of interpretation we 
have, by which we should be guided in construing the 
clause. The first which I shall quote is, — that you must 
always presume the contracting powers, in a treaty, to ac- 
knowledge allegiance to the laws of the moral world; to aim 
at promoting the ends of justice and philanthropy; and to 
mean, therefore, that whatever would counteract those ends, 
should be excepted from the possible scope of their stipula- 
tions. They are not to be supposed to have the intention, as 
in fact, they can never have the power,f of binding each 
other to commit evil. There are exceptions so clear that it 
is understood to be superfluous to express them; and these 
are, of proceedings criminal and pernicious in themselves. 

" If the expressions of a treaty," says Vattel,:}: '* are in- 
determinate, vague, or susceptible of a more or less exten- 
sive sense — if the precise point of the intention of the con- 
tracting powers, in the particular case in question, does not 
appear, it should be presumed according to the laws of rea- 
son and equity; and fo*- this purpose it is necessary to pay 
attention to the nature of the things to which it relates. 
There are things as to which equity allows of greater ex- 

* Ubi supra. t See Vattcl, B. 2d. C. xii. * B. 2d. C. xvii. 



51 

tension than restriction; such are the things called favoUm- 
hie. The odious, on the contrary, are those as to which re- 
striction tends more certainly to equity, than extension. 
Among the favourable are to be reckoned the things which 
are useful and salutary to human society; among the odious 
every thing that, in its own nature, is rather hurtful than of 
use to the human race. We should, in relation to things 
odious, when the will of the contracting powers in a treaty, 
is not exactly determined and precisely known, take the 
terms used in the most confined sense, and we may even, to 
a certain degree, admit the figurative, to remove the bur- 
thensome consequences of the proper and literal sense, or 
what it contains that is odious: for we fly from what is. 
odious, so far as this may be done, without doing violence 
to the terms. Now, neither the confined, nor even the figu- 
rative sense, does any violence to the terms." That this 
author himself considered as eminently odious in his sense, 
all that might conduce to enlarge or perpetuate slavery, 
could be shown from various passages of his excellent 
work.* 

We know from the books of history and travels, that the 
positive laws of some nations, and the customs of others, 
acknowledged in parents an absolute property in their chil- 
dren.! These might be sold, put to death, or disposed of 
in any way, at pleasure. If this order of things had ex- 
isted in Louisiana, at the period of the cession, by virtue 
either of statute or prescription,— if this spurious species of 
property had been asserted by the inhabitants,— could it be 
supposed to have been mutually understood to be included 
in the clause in question? Because, by a perversion of lan- 
guage, it bore, there or elsewhere, the name of property, 
must we have taken it as belonging to a description of pro- 
perty in the perpetual enjoyment of which the United States 
stipulated to maintain and protect the inhabitants? Above all, 
would any one have ventured to represent the Federal Go- 

* See B. 3d. C. xiii. 

f Such was the Roman Law before the imperial constiUitions. " In Irberos su- 
prema patrum auctoritas esto; venumdare, occidere liceto." Paley, in denying 
the right of parents to sell their children, (M. and P. Philosophy, B. 3d C. 10.)-— 
adds — " Upon which by the way we may observe, that the children of slaves are 
not, by the law of nature, born slaves; for as the master's right is derived to him 
through the parent, it can never be greater than the parent's own." 



52 

vernment, in discharging the obligation which I will grant 
to have been created bv the treaty, of admitting them into 
the Union according to f he principles of the Constitution — as 
compelled by those principles to abstain from imposing any 
restriction upon them, in respect to the indefinite continuance 
and extension of this hateful and mischievous institution; 
knowing, too, that such was their insane purpose; that they 
cherished it with a blind and shameless ardour of cupi iity? 

There is nothing unfair or illogical in mooting such cases, 
and reasoning from them. It is the reductio ad absurdum — 
it shows the unsoundness of the general doctrine, that Con- 
gress in associating a new State to this Union, can require 
of it nothing but what is t-xacted of wery member by the 
letter of the Constitution; that, having, perchance, in- 
curred the obligation of admitting the inhabitants of a cer- 
tain foreign territory — not pere- ptorilv and without quali- 
fication, but according to the principles of the Constitution 
—it is obliged, at th-. same time, to admit them with what- 
ever social distemper and deformity they may please to 
maintain, which is not specifically proscribed in that instru- 
ment, or incompatible with a republican form of govern- 
ment* How many practices and institutions ot a deleterious 
and ignominious nature, which tall within the class just 
mentioned, can be supposed, without contradicting experi- 
ence or probability, is well known to those who are ac- 
quainted generally with the past history and actual condi- 
tion of the various communities of the earth, or ol this con- 
tinent in particular. In fact, I cannot but view as absolutely 
monstrous, that doctrine which would go to establish the 
necessity, of extending the powerful protection and nutritive 
care of the Federal Government, — of imparting a full share 
in the national authority and councils— 10 anew community, 
whatever outrage upon human rights and Divine law, ol the 
number left untouched by the It tter of the Constitution and 
reconcileable to the form of a republican government, it 
might betray the resolution to organize and perpetuate. 

In holding this language, I am not dealing in the meta- 
physics of the question, or following out its mere shadows. 
The Constitution assigns no limits as to the theatre from 
which Congress may select new members for this Union. 



53 

The North and South of this Continent, as well as the West 
and South West, the West Indies,— are competent candidates 
for admission. * * * * But, abandoning the field of fearful 
speculation which this consideration opens, we may fix our 
thoughts merely upon the West, and reason in relation to 
the communities still to be formed beyond the Mississippi, 
in the vast region remaining as territory to the Federal 
Government. We can imagine those communities, at the 
distance and in the peculiar scenes in which they will be 
placed, to contract dispositions and habits, to receive distor- 
tions and taints, in the coarse of their advancement to the 
size usually exacted as preliminary to admission into the 
Union, which would render them not only wifit to be in- 
troduced, but dangerous as associates in the national sove- 
reignty; which might cause the miscarriage of all the 
original objects of this Confederacy; pervert it from its true 
and noblest ends: give it an entirely morbid complexion — 
unless Congress should possess and exercise the power of 
prescribing to them, new arrangements in their internal eco- 
nomy, of an assimilating and corrective tendency. 

We need not, unfortunately, employ ourselves in conjec- 
turing causes of incongruity and depravation: we have one 
at hand and assured, in negro-slavery, which, if allowed to 
that portion of the countries under consideration, which is 
now claiming admission as a state, would unerringly take 
root throughout the whole of them, and overspread their 
immense surface. This corruption is, beyond any one pos- 
sible under the letter of our Constitution and the forms of 
republican government, ominous of the fatal effects which I 
have mentioned above; subversive of the designs of Provi- 
dence for man, and insulting to his goodness and power. 
When the natural consequences of its boundless prevalence 
in this way, and of an entire predominance of the slave-hold- 
ing interest and feeling in the Federal Legislature, are barely 
descried — when we image to ourselves the new generations 
of human beings, the new myriads of blacks, crouching un- 
der the galling yoke of bondage, and perpetually irritating 
bv the spectacle of their misery and degradation, the jus- 
tice oi Heaven — when, in short, we bring to view the moral 



54 

desolation, the physical ills, and the political dangers, of 
which the idea cannot be separated from that of the diffu- 
sion of slavery from the Mississippi to the Pacific — con- 
trasting them, too, with the pictures of moral beauty, of 
universal freedom and civilization, and permanent, honour- 
able welfare, which the certainty of its absence would allow 
us to draw* — we are then at once struck with the exorbitance 

* We find in the works of Savage, a full perspective of this kind, sketched 
near a century ago and intended for North America. Both the light and shade 
may suit the present case. The poet personifies Public Spirit, and introduces his 
goddess speaking thus — 

Rapt, 1 a future colony survey? 

Come then, ye sons of Misery! come away! 

Let those, whose sorrows from neglect are known 

(Here taught, compell'd, empower'd) neglect atone! 

Let those enjoy, who never merit woes, 

In youth th' industrious wish, in age repose! 

Allotted acres (no reluctant soil) 

Shall prompt their industry, and pay their toil. 

Let families, long strangers to delight, 

Whom wayward Fate dispers'd, by me unite; 

Here live enjoying life; see plenty, peace; 

Their lands increasing as their sons increase. 

As Nature yet is found, in leafy glades, 

To intermix the walks with lights and shades; 

Or as with good and ill, in chequer'd strife, 

Various the goddess colours human life: 

So, in this fertile clime, if yet are seen 

Moors, marshes, cliffs, by turns to intervene; 

Where cliffs, moors, marshes, desolate the view, 

Where haunts the bittern, and where screams the mew; 

Where prowls the wolf, where roll'd the serpent lies, 

Shall solemn fanes and halls of justice rise, 

And towns shall open (all of structure fair!) 

To brightening prospects, and to purest air; 

Frequented ports, and vineyards green succeed, 

And flocks increasing whiten all the mead. 

On science science, arts on arts refine; 

On these from high all Heaven shall smiling shine, 

And Public Spirit here a people show, 

Free, numerous, pleas'd and busy all below. 

Learn, future natives of this promis'd land, 

What your forefathers ow'd my saving hand! 

Do j'ou the neighbouring blameless Indian aid, 

Culture what he neglects, not his invade, 

Dare not, oh dare not, with ambitious view. 

Force or demand subjection never due. 

Let, by my specious name, no tyrants rise, 

And cry, while they enslave, they civilize! 

Know, Liberty and I are still the same, 

Congenial!— ever mingling flame with flam*-' 



55 

of the proposition that the Federal Government is con 
demned by the Constitution not merely to permit, when it 
otherwise might avert, but to sanction and subserve such an 
a gg re g a tion of calamity and crime! 

In contemplating a futurity such as I have just presented, 
we are led to seek for another theory of construction more 
suitable to the occasion; and this we may find, consecrated 
by the authority of the highest judicial tribunal of this coun- 
try. It is from the Reports of the Cases argued and deter- 
mined in the Supreme Court of the United States, (4 Whea- 
ton, case of M'Culloch vs. State of Maryland,) that I make 
the following extracts, of which the application need not 
be indicated. 

Mr. Pinkney. 

" Congress is prima facie a competent judge of its own 
constitutional powers. It is a duty to construe the constitu- 
tional powers of the national government liberally, and to 
mould them so as to effectuate its great objects." 

" The constitutional government of this republican empire 
cannot be practically enforced, so as to secure the perma- 
nent glory, safety, and felicity of this great country, but 
by a fair and liberal interpretation of its powers; those 
powers could not all be expressed in the Constitution, but 
many of them must be taken by implication." 

Chief Justice Marshall. 

" The Federal Government proceeds directly from the 

people; is 4 ordained and established' in the name of the 

people * in order to form a more perfect union, establish 

justice, ensure domestic tranquillity, and secure the bless- 



Why must 1 Afric's sable children see 
Vended for slaves, though formed by JYature free, 
The nameless tortures cruel minds invent, 
Those to subject, whom JVature equal meant? 
If these you dare (albeit unjust success 
Empowers you norv unpunished to oppress) 
Revolving empire you and your's may doom 
(Rome all subdued, yet Vandals vanquish' d Rome) 
Yes, empire may revolve, give them the day, 
And yoke may yoke, and blood may blood repay. 



56 

ing ofliberty to themselves and their posterity.' It is truly 
and emphatically a government of the people. In form 
and in substance it emanates from them. Its powers 
are granted by them, and are to be exercised directly on 
them, and for their benefit," 

** Even the tenth amendment, which was framed for the 
purpose of quieting the excessive jealousi< s which had been 
excited, omits the word ' expressly,' and declares only that 
the powers ' not delegated to the United States, nor prohi- 
bited to the States, are reserved to the States or to the peo- 
ple;' thus leaving the question, whether the particular power 
which may become the subject of contest has been delegated 
to the one government, or prohibited to the other, to de- 
pend on a fair construction of the whole instrument." 

" Its nature requires, that only its great outlines should 
be marked, its important objects designated, and the minor 
ingredients which compose those objects be deduced from 
the nature of the objects themselves." 

" In considering this question, we must never forget, that 
it is a constitution we are expounding." 

" The subject is the execution of those great powers, on 
which the welfare of a nation essentially depends. It must 
have been the intention of those who gave those powers, to 
insure, as far as human prudence could insure, their benefi- 
cial execution. This could not be done by confiding the 
choice of means to such narrow limits as not to leave it in 
the power of Congress to adopt any which might be appro- 
priate, and which were conducive to the end. This provi- 
sion is made in a Constitution intended to endure for ages to 
come, and, consequently, to be adapted to the various crises 
of human affairs." 

" Let the end be legitimate, let it be within the scope of 
the Constitution, and all means which are appropriate, 
which are plainly adapted to that end, which are not prohi- 
bited,!)^ consistent with the letter and spirit of the Consti- 
tution, are constitutional." 

If the text of the Constitution were, unaccountably, such 
as to warrant the interpretation, that the Federal Government 
was denied the power of imposing any restriction as to 



57 

slaverv, upon the new states which the Convention had in 
virzv, still I would contciiJ that, in an extreme case like the 
pi < sent, never con emplated nor imagined,* that government 
would be at liberty to consult the national interests, and 
minister to the ends of Eternal Justice and Benevolence. 
The principle of this dispensation from the letter of the 
Constitution, mav be illustrated in an example offered by 
Vattel. u L.et us suppose," he says, " a captain has receiv- 
ed orders to advance in a right line with his troops to a 
certain post: he finds a precipice in his way; he is certainly 
not ordered to throw himself down it; he ought therefore, 
to turn from the right line, so far as is necessary to avoid 
the precipice." One of the general rules which this author 
establishes, deserves also to be quoted as decisive of the 
course Congress should pursue, in the interpretation of the 
Constitution, on an occasion of the nature here described. 
" In unforeseen cases, that is, when the state of things is 
found such as the author of a disposition has not foreseen, 
and could not have thought of, we should rather follow his 
intention than his words, and interpret the instrument as he 
himself would have interpreted it, had he been present, or 
conformably to what he would have done, if he had fore- 
seen the things that have happened." 

I may array in this place some points, respecting which no 
candid and unbiassed reader of what precedes, will, I think, 
hesitate for a moment:— 1st. That, if the introduction of negro- 
slavery had been an original question for the Federal Conven- 
tion, and there had been cause to apprehend it, they would 
most earnestly havt- provided against it in the Constitution: — 
That if the pestilence had been confined to one or two 
States only, they would have insisted upon direct provisions 
either for its gradual extirpation, or its strict compression 
within its cotemporary limits: — That, as the case was, if 
the consent of the slave holding States could have been ob- 
tained, a periJa would have been fixed for the enterprise 

* See the No. 14 of the Federalist; from the tenor of which it is evident, that 
no idea was entertained of the extension of the Union beyond the limits of the 
territory, which the United States held when the Constitution was formed. 

H 



58 

of total abolition, by measured degrees: — That, if the 
majority of the Convention who, at the risk of foregoing 
the Union, refused to allow the slave trade, internal or ex- 
ternal, to the old States, for a longer term than twenty 
years, or to secure its toleration for a moment as to the 
new, had had even a presentiment of such a question arising 
for the decision of Congress, as the establishment of slavery 
in another great division of this continent, they would have 
left no room for suspense; — -.»r, if they were now at hand to 
interpret their work, in reference to it, they would quickly 
determine in the negative. We are not permitted to think 
otherwise of the men who would not suffer the Constitution 
to be profaned with the word slave, and who had fresh in 
their memory and hearts, when they contrived this charter 
of freedom, the following peroration of an address of Con- 
gress* (which too, no inconsiderable part of them had sign- 
ed), to the confederate states. 

" Let it be remembered, that It has ever been the pride 
and boast of America, that the rights for which she contend- 
ed, were the rights of human nature. By the blessing of 
the Author of these rights, on the means exerted for their 
defence, they have prevailed against all opposition, and 
form the basis of thirteen independent states. No instance 
has heretofore occured, nor can any instance be expected 
hereafter to occur, in which the unadulterated forms of 
republican government can pretend to so fair an oppor- 
tunity of justifying themselves by their fruits. In this 
view, the citizens of the United States are responsible for 
the greatest trust ever confided to a political society. If 
justice, good faith, honour, and all the other qualities 
which ennoble the character of a nation, and fulfil the ends 
of government, be the fruits of our establishments, the 
cause of liberty will acquire a dignity and lustre which it has 
never yet enjoyed; and an example will be set which cannot 
but have the most favourable influence on The righes of 
mankind. If on the other side, our governments, should 

• April 178.3. 



59 

be unfortunately blotted with the reverse of these cardinal 
and essential virtues, the great cause which we have en- 
gaged to vindicate will be dishonoured and betrayed, the 
last and fairest experiment in favour of the rights of human 
nature will be turned against them, and their patrons and 
friends exposed to be insulted and silenced by the votaries 
of tyranny and usurpation." # 

With regard to the interpretation of the word property 
in the article of the Treaty, the utmost scope which Con- 
gress could have thought themselves bound to give it, — if 
they allowed it to reach the case of human beings at all, 
—was the maintenance of the existing relations between 
the white population and the individuals held in bondage; 
and the enjoyment of the services of the offspring of the 
latter, until they reached that age at which they could be 
supposed to have indemnified the master, by their labour, 
for the expenses incurred on their account from their birth 
to their adult state. If we were to acknowledge Congress to 
have been bound, upon general principles, to give greater 
comprehension to the term in this case, we should accuse the 
states that have abolished slavery within their limits, of 
having committed a flagrant wrong, and a direct breach 
of their Constitutions.* I have never heard that such an 
accusation has been preferred against them, or deemed te- 
nable. 

If there could be upon general principles, a descendi- 
ble right of property in the negro and his offspring in 
perpetuity, that right was as complete' and as fully vested 
in the slave holder, of Pennsylvania for instance, as it ever 
was or will be, in any part of the world; and the state could 
not lawfully despoil him of it, or curtail it without making 
him compensation. This commonwealth and the others who 
took a similar course as to slavery, had admitted and legal- 

* "Whenever the public exigencies require that the property of any indivi- 
dual should be appropriated to public uses, he shall receive a reasonable com« 
pensation therefor." — Constitution of Massachusetts. 

" Nor shall any man's property be taken or applied to public u-e, without the 
consent of his representatives and without just pompensation being made." — 
Constitution of Pennsylvania. 



60 

ized, the application of the term property to the slave; in 
practice the) had allowed it to be asserted in the utmost 
latitude: they had therefore, apparently, no room left,— as 
Congress had in the case of its occurrence in the treaty,— 
to deny it all reference to the human being: they seemed, 
on the contrary, precluded from limiting its comprehension 
in- any manner, seeing that the indefinite was the prescrip- 
tive one among themselves. But they did contract it, with- 
out making indemnity to their citizens whom this legisla- 
tion directly abridged, of so much wealth; and in so doing, 
they virtually denied the existence of such a right of pro- 
perty as the one mentioned above; or that it could oe created 
by prescription, custom, or even legislative acts regulating 
possession and use. We have, here, on this point, the 
deliberate judgment, hitherto unimpeached e\en as to its 
sweeping application, of six state governments; forming a 
cumulative precedent for Congress, as to the utmost extent 
of its obligation in the interpretation of the term property 
in the treaty; — a precedent, which if not binding upon that 
body, has at least a claim to much deference. 

Massachusetts, as we know, dealt with the subject in a 
more summary way than the other abolishing states, who 
all went to the limits which I have marked out, as the ulti- 
mate to which Congress could have supposed its duty in the 
matter to extend. So early as 1770, her courts of justice 
supported the negro sbve in pleading against his master, the 
principles of the common law, and rejected the pretension, 
of property even in the services of the former, unless found- 
ed upon express contract. " The present Constitution of 
Massachusetts," says Dr. Belknap, " was established in 
1780. The first article of the Declaration of Rights asserts 
that 'all men are born free and equal.' This was inserted, 
not merely as a moral and political truth, but with a view- 
to establish the liberation of the negroes on a general prin- 
ciple, and so it was understood by the people at large. The 
decisions of the judicial tribunals were in conformity with 
this understanding."* 

* See 4th Vol. Massachusetts Hist Coll. "The state of New Hampshire es- 
tablished their Constitution in 1783; and in the fust article of the declaration ot 



61 

The conduct of the abolishing States forbids to those oi 
their representatives in the Federal Gov trnmcnt, who would 
not arraign them of usurpation, the acknowledgment of a 
right of property such as that under consideration, or of an 
obligation in the Federal Government to act in any case 
upon this notion; and it furnishes their high authority for 
the following propositions which it implies as a part of .heir 
creed and motive. 1st. Hereditary servitude is in itself a 
violation of rights and duties essential to human nature, and 
therefore can find a warrant neither in prescription, conve- 
nience, general practice, nor statute of any kind — in nothing 
but absolute necessity. 2. No plea is sufficient to excuse 
any community for maintaining it, but that of self-preserva- 
tion. 3d. A presiding government, having jurisdiction in 
the case, is justified in permitting it, only where its aboli- 
tion would endanger in a high degree the general safety. 

Take it apart from these salvos, and, indeed, then to as- 
sert its propriety or deny its unlawfulness, would be to dis- 
own all moral relations between man and man, and even 
all subordination and responsibility to the Creator, if not 
his very existence. Whatever right it could imply, would 
be only the right of the strongest;* and its advocates must at 
the same time become those of political slavery, and of every 
species of dominion founded in force or fraud. There would 
be an entire apostacy from the whole established code of 
political and religious ethics — the more sacred and obliga- 
tory, however, for us, because it is, in some sort, wrought 
into all our Constitutions. If any description of men could, 
without having their own personal safety and liberty, or 
their political existence or independence, at stake, but 
merely for their greater convenience, or wealth, or dignity, 
or scope of command, or from luxurious habit, lawfully re- 
tain another description of men in personal bondage of such 
a character as that in which our negroes are now held, then, 

rights, it is asserted, that " all men are born equally free and independent." The 
construction there put on this clause is, thrt all who have been bom since the 
constitution, are free; but that those who were in slavery before, are not liberated 
by it " Ibid. 
* Hercules is the tutelary god of slaves in the ancient Mythology. 



62 

the similar subjection of the whites of Maryland to those 
of Virginia, as it would answer the same ends, would be of 
equal validity, if it could be brought about; and we could 
find nothing wrong in the slavery of the multitude in aristo- 
cracies or absolute governments; in the condition of the 
people in Poland or Algiers. 

The Congress of the United States could never allow 
itself to be betrayed into a doctrine or course of proceeding, 
which would involve it in such a labyrinth of inconsistency 
and heresy both moral and political. 



63 



SECTION III. 

With the principles and the facts which I have submitted 
in the preceding sections, fully impressed on our minds, we 
shall have little difficulty in deciding upon the claim of the 
inhabitants of the Missouri Territory to be admitted into 
the Union, free from all restraint in relation to negro-slave- 
ry. In this case, I am naturally led to advert in the first 
instance, to some parts of the act of Congress (of June 4th, 
1812) providing for the government of that territory; which 
is not an extension of the ordinance of 1787, to the inha- 
bitants, but a distinct body of regulations. The 14th section 
treats of " the rights secured to the people of the territory;" 
and among the number of those rights is the following: 
" No man shall be deprived of his V&\ HBcrty] or property, 
but by the judgment of his peers and the law of the land." 
The 15th section provides that " no tax shall ever be im- 
posed on the lands the property of the United States; that 
the lands of non-resident proprietors shall never be taxed 
higher than those of residents, that the Mississippi and Mis- 
souri Rivers shall be for ever free, &c." These and other 
restrictions indefinitely prospective, extending to the period 
when the territory should have become a sovereign state, 
and affecting rights of sovereignty not surrendered by the 
original states, were submitted to without a murmur, both 
in the Territory, and in Congress. No protest was entered 
from any quarter, in favour of the sovereignty then germi- 
nating, and thus shorn in advance. 

But, when, during the last session of Congress, — the peo- 
ple of the territory having become sufficiently numerous for 
admission into the Union, and a bill having been framed in 
the usual form to enable them to be admitted, — an amend- 
ment was proposed which required the prohibition of the 
introduction of slaves into the new state, and the emanci- 
pation of the offspring of those already there, at the age of 



64 

twenty-five,* the most vehement opposition was made to 
the imposition of these conditions, by the delegate of the 
Territory, and supported by the representatives of the slave- 
holding states. The delegate averred that u the spirit of 
freedom burned in the breasts of the people of Missouri, 
and that they would not come into the national family 
with this suspicious, shameful inhibition in their charter,"! 
— gainst the perpetuation of slavery! It was not denied in 
any quarter, that the freemen of Missouri would themselves, 
if left at liberty, take no measures to prevent that catas- 
trophe, or the multiplication of the race of slaves by every 
mode. 

The advocates of the Missouri claim to exemption from 
the provisions of the amendment, found themselves com- 
p. lied to contend, in limine, that Congress possessed no 
constitutional power to prescribe to a new state, any restric- 
tion of whatever kind, under which the original states did 
not labour. This was to accuse the Federal Government of 
usurpation in every instance of the admission of a new state, 
except those of Vermont and Kentucky. The doctrine of 
Missouri is amph refuted in the preceding pages. I need 
but appeal to the practice in the case, as I have detailed it, to 
preclude all controversy. It must be sufficient to fix the 
opinion of the public at large, as it would be, under all the 
circumstances, to govern that of the high judicial tribunal, 
which has cognizance of the point of the conformity of the 
Acts of Congress with the Constitution. That I may not 
appear to overrate the authority of such a precedent as that 
of the ordinance of 1787, looking particularly to its applica- 
tion to the States formed out of the North Western Terri- 
tory, I will quote from the reports of two analogous cases 
determined in the supreme court of the United States. 



* The text of the amendment is as follows, — " And provided also that the 
"further introduction of slavery or involuntary servitude into the said state, be 
" prohibited, except for the punishment of crimes, whereof the party shall have 
" be. n duly convicted — and that all children of slaves born within the said state, 
"afu-r the admission thereof into the Union, shall be free, but may be held to 
" Bervicc until tht age of twenty-five years." 

•\ See his Speech published in the National Intelligencer of March 83d, 181°. 



65 

The first is one* in which the principal question was — 
whether Congress could impose upon the judges of the su- 
preme court the duty of acting as judges of the circuit 
court; and the point determined — that " a cotemporary ex- 
position of the constitution practised and acquiesced in for 
a period of years fixes the construction; and the court will 
not shake it." The judiciary system which imposed the du- 
ty abovementioned upon the judges of the supreme court, 
was enacted (as the ordinance of 1787, with the prohibition 
of slavery, was re-enacted) by the first Congress in 1787. 
The counsel before the court answered the exception taken 
to the constitutionality of the system on this score, in these 
terms: 

" As to the objection that the law of 1789 is unconstitu- 
tional, inasmuch as it gives circuit powers, or original ju- 
risdiction, to judges of the supreme court; it is most proba- 
ble that the members of the first Congress, many of them 
having been members of the Convention which formed the 
Constitution, best knew its meaning and true construction. 
But if they were mistaken, yet the acquiescence of the 
judges and of the people under that construction, has given 
it a sanction which ought not now to be questioned." 

The following is a part of the opinion of the court, deli- 
vered by Judge Patterson. 

" Another reason offered for reversal is, that the judges 
of the supreme court have no right to sit as circuit judges, 
not being appointed as such, or in other words, that they 
ought to have distinct commissions for that purpose. To 
this objection, which is of recent date, it is sufficient to ob- 
serve, that practice and acquiescence under it for a period 
of several years, commencing with the organization of the 
judicial system, affords an irresistible answer, and has in- 
deed fixed the construction. It is a contemporary interpre- 
tation of the most forcible nature. This practical exposi- 
tion is too strong and obstinate to be shaken or controlled. 
Of course, the question is at rest, and ought not now to 
be disturbed." 

* Stuart vs. Lard. 1 C ranch. 

I 



66 

The other case to which I allude, and from which I have 
already made some extracts, is that of M'Culloch v. the 
State of Maryland, turning upon the point of the constitu- 
tionality of the Bank of the United States. Since the con- 
stitutionality of the ordinance of 1787, and of all the acts 
founded upon it, is assailed by the pretension of Missouri, 
and as the material circumstances are the same as in the 
case of the bank-law, the following passages from the speech 
of the counsel, and the opinion of the court, cannot fail to 
be of much efficacy on this occasion. 

Mr. Pinkney* — " The constitutionality of the establish- 
ment of the bank, as one of the means necessary to carry 
into effect the authorities vested in the national government, 
is no longer an open question. It has been long since set- 
tled by decisions of the most revered authority, legislative, 
executive, and judicial. A legislative construction, in a 
doubtful case, persevered in for a*course of years y ought to 
be binding upon the court. This, however, is not a question 
of construction merely, but of political necessity, on which 
Congress must decide. It is conceded, that a manifest 
usurpation cannot be maintained in this mode; but, we 
contend, that this is such a doubtful case, that Congress 
may expound the nature and extent of the authority under 
which it acts, and that this practical interpretation has be- 
come incorporated into the consiitution. There are two dis- 
tinguishing points which entitle it to great respect. The 
first is, that it xvas a cotemporaneous construction; the se- 
cond is, that it xvas made by the authors of the constitution 
themselves. The members of the Convention who framed 
the constitution, passed into the first Congress, by which 
the new government was organized. They must have un- 
derstood their own work. They determined that the consti- 
tution gave to Congress the power of incorporating a bank- 
ing company." 

" Congress is, prima facie, a competent judge of its own 
constitutional powers. It is not, as in questions of privilege 

* I quote from this eminent lawyer, not only on account of the great intrinsic 
authority of his opinions, but because they were all, in this instance, adopted and 
repeated by the court. 



67 

the exclusive judge; but it must first decide, and that in a 
proper judicial character, whether a law is constitutional, 
before it has passtd. It had an opportunity of exercising its 
jui gment in this respect, upon the present subject, not only 
in the principal acts incorporating the former, and the pre- 
sent bank, but in the various incidental statutes subsequent- 
ly enacted on the same subject; in all of which, the question 
of constitutionality was equally open to debate, but in none 
of which was it agitated. 

" There are, then, in the present case, the repeated deter- 
minations of the three branches of the national legislature, 
confirmed by the constant acquiescence of the state sove- 
reignties, and of the people, for a considerable length of 
time: Their strength is fortified by judicial authoritv. 

M The reservation on the tenth amendment to the Consti- 
tution, of " powers not delegated to the United States," is 
not confined to powers not expressly delegated. Such an 
amendment was indeed proposed; but it was perceived, that 
it would strip the government of some of its most essential 
powers, and it was rejected." 

Mr. Chief Justice Marshall: 

" It has been truly said, that this can scarcely be consider- 
ed as an open question, entirely unprejudiced by the former 
proceedings of the nation respecting it. The principle now 
contested was introduced at a very early period of our his- 
tory, and has been recognized by many successive legisla- 
tures." 

" It will not be denied, that a bold and daring usurpation 
might be resisted, after an acquiescence' still longer and 
more complete than this. But it is conceived that a doubtful 
question, one on which human reason may pause, and the 
human judgment b^ suspended, in the decision of which 
the great principles of liberty are not concerned, but the 
respective powers of those who are equally the representa- 
tives of the people, are to be adjusted; if not put at rest by 
the practice of the government, ought to receive a consider- 
able impression from that practice." 

" It would require no ordinary share of intrepidity to as- 
sert, that a measure adopted under these circumstances was 



68 

a bold and plain usurpation to which the constitution gave 
no countenance." 

The inhabitants of Missouri, and their auxiliaries in this 
question, seem to overlook the circu instance, that all the 
state sovereignties are qualified sovereignties. At the forma- 
tion of the Constitution, the great attributes were surren- 
dered by the people of the States, to effect a greater common 
welfare, and secure the enjoyment of particular advantages. 
The same principle, the common welfare — which produced 
and exacted this sacrifice, then; may, from a change ol cir- 
cumstances, render necessary and proper, now, the surrender 
of more, from the new members of the Confederation; the 
solid advantages of the Constitution being extended to them. 
This would be in a course of analogy with the system of sin- 
gle political communities, which, for the common good, 
often place the strangers, who would be incorporated with 
them, under permanent disabilities, besides those to which 
their original or native members are subjected.* It is the 
exact conduct of the American people when, acting as a 
single nation, they established the rule of the Constitu- 
tion, that " no person, except a natural born citizen; or a 
citizen of the United States, at the time of the adoption of 
the Constitution, shall be eligible to the office of president." 

There would be a serious defect, indeed, in our scheme of 
government, if the consideration upon which so much of prero- 
gative was, on establishing that government, resigned by the 
original parties, could not be made operative, when it might 
be found, in the case of the introduction of new associates, 
to present itself calling for the surrender of more from 
them, without however causing that favour to cease to be 
highly desirable, or even intrinsically less valuable. u There 

" In England, naturalization does not give the faculty of becoming a member of" 
the privy council or Parliament. " No bill for naturalization," sajs Blackstone, 
(B. 1. c. 10) " can be received in either houst of parliament without a disabling 
clause in it to that effect." Congress might, I pre8umt, under the general power 
given to them by the Constitution " to establish an uniform rule of naturaliza- 
tion," limit the comprehension of the word in a similar manner. 



69 

ought to be," says the Federalist,* " in the national go- 
vernment, a capacity to provide for future contingencies, as 
they may happen; and as these are illimitable in their na- 
ture, so it is impossible safely to limit that capacity." 

Upon these indispensable principles, has the Federal Go- 
vernment acted in the interpretation of its powers; and 
upon them did the Convention of 1787 proceed, as to the 
case of the admission of New States. They knew thut it 
might be attended with exigencies not to be foreseen, and 
important to be at once met; they therefore deposited in 
the Federal Government, a general discretionary power on 
the subject, specifying two limitations only, so as to con- 
firm the indefinite character of the discretion in all other 
respects. Among the possible exigencies above mentioned, 
there is none for which it was of more consequence to pro- 
vide, and which appears more likely to have been of the 
number of those which they anticipated, than the alternative 
of either rejecting totally a new state, or admitting it with 
faculties, the exercise of which would counteract the ori- 
ginal tnds of the Union. 

In making these remarks, I have gone upon the supposi- 
tion, that the establishment or maintenance of slavery, 
might be classed among the rights of sovereignty. This is 
assumed by the inhabiiants of Missouri. I have, perhaps, 
already said enough in refutation of the error; but a few 
observations more of the same drift may not be amiss. 

We live, I presume, in a country, where I shall not be 
liable to contradiction in asserting — That right and physi- 
cal power are not the same thing, and that there is some 
other law in the state of nature, besides the will of a pre- 
vailing force: — That it is not among the natural rights of 
man to enslave his fellow man; but that, on the contrary, 
personal liberty is one of those rights: — That states are moral, 
responsible persons, and subject like individuals, to the law 
of nature; deriving from it their rights as well as duties. 

The simple enunciation of these irrefragable propositions 
is sufficient to make it clear to all, that it is a perversion of 

* No. 34. • 



70 

language to speak of the establishment or maintenance ot a 
domestic slavery which originated in fraud or fore; that 
is, of an organized violation of thr natural rights of man,— 
as among tru rights of sovereignty. This a false claim des- 
tructive of the real one on the other side. There is a sole- 
cism in the idea of the commission of what is a wrong un- 
der the law of nature, being matter of right under that law. 

The duty of st It preservation, founded on the same law, 
gives rights to states as well as individuals. If the safety 
of the inhabitants of Missouri even appeared to depend on 
the introduction of new slaves and the perpetuation oi the 
system of slavery, among them, they might, perhaps, plead 
those mere faculties of evil, as rights of sovereignty. But 
it is not denied that they would continue a flourishing com- 
munity, though the whole amendment stated above, should 
be adopted by Congress. They do not pretend to advance 
the plea of the Southern planters, that a population of negro 
labourers is rendered indispensable for them, by the nature 
of their climate and staple products. The emancipation of 
the offspring of the comparatively small number of negroes 
whom they now hold, could neither induce any personal 
danger, nor impair their wealth in any sensible degree. On 
the contrary, it is certain, that by abandoning in the mode 
proposed, the slave-holding system, they must ultimately 
gain in every respect, without suffering a present inconve- 
nience worthy of calculation. 

We are, then, irresistibly conducted to the conclusion, 
that the Federal Government in proposing to them the re- 
pudiation of domestic slavery, do not ask a sacrifice of 
right, or evtn ot an additional portion of that natural liberty 
(always understood to mean moral comp(tencif) which in- 
dependent states necessarily surrender in part, when they 
become membt rs of a political confederation. The State of 
Missouri would not be the less sovereign for all purposes 
of just authority and real advantage: she would not be the 
less entitled to be considered as on an equal footing with 
the original states, according to the adequate sense in which 
the framers of the ordinance of 1787 understood the phrase. 
Her liberties could no more, with propriety, be said to be 



71 

abridged or outraged, than those of the individual, who, in 
a well regul itcd society, is restrained from usurping an ab- 
solute dominion over the person of his fellow citizen. In 
submitting to the restriction proposed by Congress, she 
would only place herself under a new incapacity of persist- 
ing in the perpetration of a crime, and of marring her hap- 
pier fortunes. This can hardly be deemed a grievance; or 
at least, it would not seem to be one of such magnitude as 
to justify the ferment which we witness. 

It has been urged as an argument to prove the inequality 
said to be produced between the new and the old states by 
the restriction concerning negro-slavery, that such of the 
latter as have abolished this nuisance, are under no dis- 
ability with respect to its revival within their bosom. But, 
the other restrictions would furnish much stronger argu- 
ment of the same purport; since the old states can and do 
tax non-residents' lands higher than the lands of their citi- 
zens; can and do tax the property of the United States, 
levy, tolls upon the navigation of their rivers, and have 
a complete control over religious liberty; all of which 
rights of sovereignty have been prohibited to most of the 
new States. In truth, however, if what I have advanced in 
the preceding paragraphs be just, to re-establish negro- 
slavery; to create it anew — is not within the moral compe- 
tency, and of course not among the rights of any of the 
old States: And when the phrase " equal footing" is used 
in the question of the admission of new ones, we must pre- 
sume that the inhabitants of Missouri would not themselves 
profess to understand it, in reference to the unquestionable 
abuse of power; or to any thing else than the genuine attri- 
butes of sovereignty. Pennsylvania or Massachusetts, for 
example, are no more competent to replace the negroes un- 
der the yoke of hereditary slavery, than to impose it on any 
portion of their white citizens. Whether the Constitution 
leaves them at liberty to do this; that is, would not be 
thought to reach the case of the usurpation by a portion of 
the inhabitants of a non slave-holding state, who might 
happen to be the strongest, of an absolute personal dominion 
over the remainder, — whether the Federal Government 



72 

would not be held entitled to interfere in such a case — is, to 
say the leabt, doubtful; and could hardly, I suspect, on the 
emergency, be deemed an invincible point of conscience 
even by the most scrupulous of our statesman. Should a 
state undertake to revive and cherish the small-pox, or to 
foster and perpetuate the yellow fever, a supposition not 
more dreadful, nor, in relation to all the states east of 
Delaware, more improbable and insulting, than that of the 
re-establishment of negro slavery — it would, methinks, if 
her neighbours were not autnorised by the law of vicinage, 
or had not the physical force, to restrain the attempt, form 
that kind of extreme case which would place itself within 
the cognizance and management of the Federal Govern- 
ment. 

The manner of urging the pretension of Missouri betrays 
a forgetfulness of some points which are not undeserving of 
notice. Our new states are not to be viewed in the same 
light as communities originally and vigorously independent; 
who could treat on a footing of immediate mutual advantage, 
and in whom a lofty tone of conscious sufficiency, and sturdy 
tenaciousness of power, might be somewhat becoming. The 
former are mere creatures and nurslings of the Union; in- 
debted for their release from leading-strings, and their admis- 
sion into the high and profitable partnership, to a sort of pa- 
rental indulgence exercised upon no calculation or expectation 
of greater advantage, than would be reaped inprolongingtheir 
pupilage. Self-government and the prerogatives of empire 
are gratuitously extended to them, with a truly prodigal 
alacrity of kindness and munificence. Hence, the Federal 
Government might be held to be entitled to a wider discre- 
tion in dictating terms; its own interpretation of its consti- 
tutional powers in this respect to greater deference; and its 
decisions to more ready and respectful submission. Though 
the soil of Missouri be not a part, or an original domain of 
the good old states, nor peopled altogether by native children 
of this republic; yet the great majority of the present inha- 
bitants are of this description; and the remainder owe an 
inextinguishable debt of gratitude for their rescue from the 



73 

hands of Spain or France. Even when divested of the fa^ 
cult}' of outraging heaven by oppressing humanity in the 
persons' of the blacks, they may still, in contrasting their 
condition and that of the ir country, with what it would have 
continued to be, under the dominion of either of those 
powers, glow with sentiments of acknowledgment and filial 
piety to the IJnion. 

Another ground upon which a greater latitude of power 
as to restriction, would be necessarily inferred for the su- 
preme government, is this— that it is not merely a federal 
but a national one in no inconsiderable detail. Being direct- 
ly a trustee of the whole American people, it has a more 
immediate care of their welfare, a heavier responsibility, and 
of course, we must presume, ampler powers, in relation to 
the defence and advancement of that welfare in every in- 
stance of particular concern. That of the admission of a new 
state would surely be of this character, though our union 
were merely federal; but it is evidently rendered more so 
by the greater intimacy of association and interests pro- 
duced by our national compact. 

Not only the domestic institutions as well in their remote 
tendency, as in their immediate influence, but the general 
dispositions, of the candidates for admission into the national 
family, and for a share in the management of its destinies, 
become of considerable consequence to the people of the 
original Union, and would, therefore, seem to fall, properly 
and constitutionally, within the cognizance of the guardians 
and agents of the national welfare, as matter by which their 
decision should be affected. If we suppose the case of a 
community appearing in the character of a candidate, but 
clamorous at the same time for an exemption from all re- 
straint upon an avowed intention of maintaining hereditary 
servitude among them, without having any other plea to of- 
fer for it than their mere convenience — making, in this way, 
a fond election of evil and crime — attempting to browbeat 
the naiioual councils into a compliance with their flagitious 
aims — fiercely chiding all delay, and threatening in the 
event of a refusal, a violent revolt from the federal autho- 

K 



74 

l ity, their lawful and absolute sovereign* — if we supposed a 
case of this complexion, wc could hardly doubt either the 
competency or the obligation of the national legislature, in 
pursuance of their general trust with regard to the stability 
and honour of the Union, to detain without its pale, those 
who gave such evidence of principles and .flections, so little 
befitting the character of its citizens. Such conduct could 
no be denied to warrant the apprehension that, it suff. red 
to enter, they would afterwards submit to its sway, however 
regularly expounded and ext rosed, only when obedience 
was not at variance with th*. ir inclination or fancied interest, 
of the moment. 

In the actual instance of the inhabitants of Missouri, were 
the Federal Government entitled to view as a criterion of 
their universal mood and fioctrine, the address to Congress 
on the subject, from one of their religious societies, it might 
conceive a degree of alarm and disgust which would prompt 
to their exclusion for a longer term, even should they con- 
sent, at once, to receive and execute the Amendment. We can 
scarcely, indeed, imagine it possible that any body of Ameri- 
can freemen, would, without a sort of compulsion from a ge- 
neral disteinperature about them, assemble specifically as 
Christians, taking " the religion of Jesus" as their canopy, 
and invoking the name of God, — to assert before this natio» 
and the world slave-holding- as their right, and the perpetu- 
ation of slavery as the right of their community; to vindi- 
cate the claim of absolute property in human flesh; to teach 
the injustice of emancipation, and to represent those who 
aim at effecting it in Missouri at a considerable distance of 
time, as it was effected in the Middle and Eastern States, 

* See the speech of Mr. Scott, delegate from Missouri, delivered during the 
present session of Congress, as reported in the National Intelligencer, December 
15th. " He, Mr. Scott, hoped that the proposition to postpone the question (of 
providing for the admission of Missouri into the Union) till the first Monday of 
February would not succeed. If the bill ultimately was lost, it was necessary that 
the people of Missouri should be soon apprized of its failure, that they might 
have time to act fur tliemselves, and frame a form of government, -which he was 
convinced they -would do, without waiting again to apply to Congress for the mere 
means of organization* 5 !! This is the language of anarchy, and it is surprising 
that the esprit de corps alone, as to the supremacy of tin Federal Government, 
did pot impel the represer.tatiws of the old south e I .. States, to reprove and resis' 
so bold a defiance of its authority , and so dangerous a precedent of misrule. 



75 

in the light of blind zealots and mistaken philanthropists!* 
If so desperate a sally of avarice, in the disguise of Chris- 
tianity—so abominable a profanation of the Divine Name 
and institute— were necessary, to gratify the public senti- 
ment, we can have no hesitation in saying, nor the Congress 
in deciding, that Missouri is not yet worthy to be inaugu- 
rated as a member of this Union. 

The chief reliance of the inhabitants of Missouri, in the 
argument, would seem to be the article of the treaty of ces- 
sion, and the p£< mption of the State of Louisiana Irom re- 
striction as to slavery. With regard to the article, the 
suggestions of my second section explain sufficiently, of how 
little avail it is to them, and tbat the question is left on 
its original footing. It refers them to the principles of the 
Constitution — that is, places them within the control of the 
constitutional powers of Congress. If it be conceded that the 
Federal Government contracted an obligation to admit 
them, this does not affect the point at issue. The obligation 
is qualified by the liberty expressly left, of determining the 
circumstances under which the admission should take place. 
The United States covenanted, as pointedly and solemnly, 
with the State of Virginia, to receive the North West Ter- 
ritory into the Union; yet they did not hesitate to impose 
upon the states formed out of it, among many conditions 
of admission, that of the immediate, perpetual prohibi- 
tion of slavery. This is not to be found, either required 
or hinted, in any of the legislative acts of Virginia relative 
to the cession. 

Louisiana was, it is true, incorporated free from restrict 
tion as to slavery. But the constitutional power of Congress 
is not annulled, because it was not exercised in this instance, 
on that particular point. It was fully exerted, in the same 
case, on others no less striking and conclusive as to the prin- 
ciple in question. In this view the precedent militates 

* See the Address to Congress of " The Delegates from several Baptist 
Church* sof Christ, composing the Mount Pleasant Association holden at Mount 
Zi'on meeting hoitst-, Howard Count), and I'erriton of Missouri, Oi the 11th, 
12th, and 13th < : a - of September, m the year ot our Lord one thousand eight 
hundred and nineteen." 



76 

strongly against Missouri. Congress, in leaving untouched 
thi system of slavery in Louisiana, acted upon a cogent ex- 
pediency, embracing the peace oi that state, and the South- 
ern region generally. The slavery in Louisiana appeared, 
from the number of the negroes, and the inveterate habits 
and dispositions of the considerable white population, to be 
a necessary evil; that is, one . hich supposes that some- other 
and greater evil would be incurred were it removed. Is 
this the case as to the slavery existing in Missouri? It 
cannot.be pretende i. Missouri, then, stands towards Con- 
gress, on this ubject, in a very different relation from that 
in hich Louisiana stood. Her situation would furnish n& 
excuse for stopping short, in her case, of the measures of re- 
striction proposed by the amendment. If the propositions 
which I have adduced near the close of the preceding sec- 
tion, as the grounds oi the abolition in Pennsylvania and 
the Eastern States, be sound, Congress cannot refrain from 
what is now attempted, without violating their duty, and 
sacrificing the national character. " All persons," says Mr. 
Burke, M possessing any portion of power ought to be 
strongly and aw full) impressed with the idea that they act in 
trust, and that they are to account for their conduct in that 
trust, to the one Great Master, Author and Founder of so- 
ciety." 

Were we to allow that the restriction in question might 
have been fastened upon Louisiana without ruinous conse- 
quences, we would be involved in no other conclusion than 
this, that Congress had transgressed in one instance, and 
should, therefore, be more anxious and determined, about 
doing right in another. The appeal which has been made, 
in favour of the Missouri claim, to the toleration of slavery 
in the old States, as a precedent, is still weaker in the point 
of analogy, as well as reason. It has been repelled, in an 
excellent newspaper essay,* in a strain of argument and 
ex- ression > hich I cannot improve, and a part of which I 
shall thcrefon transcribe. " The people of the Western 
Country have first to show, that their situation is similar 

• First (i. iuted in the Rhode Island American, and signed William Penn. 



77 

to that of the Southern States, when slavery was admitted 
by the constitution; and they must also show, that the same 
necessity exists, which induced this country to countenance 
slavery, before they can claim a privilege of keeping slaves, 
upon the principle of the confederation. They ought to do 
more; they ought to show, that such additional necessity is 
attached to their claim, as will have sufficient weight to 
counterbalance the still deeper conviction of the injustice 
and impiety of slavery, which have been produced by in- 
creased light and information." 

The inhabitants of Missouri take refuge in the word pro- 
perty employed in the treaty of cession. Its insufficiency for 
their purpose has been made apparent. But this can be done 
by other views than those under which I have displayed it. 
They are furnished by Mr. King in the following passages 
of his speech: 

" The clause concerning property in the article is ex- 
pressly confined to the period of the territorial government 
of Missouri; to the time between the first occupation of the 
country, by the United States, and its admission as a new 
State into the Union. Whatever may be its import, it has 
no reference nor application to the terms of the admission, 
or to the condition of Missouri after it shall have been ad- 
mitted into the Union." 

" But admitting that slaves were intended to be included, 
the stipulation is not only temporary, but extends no further 
than to the property actually possessed by the inhabitants of 
Missouri, when it was first Occupied by the United States. 
Property since acquired by them, and property acquired or 
possessed by the new inhabitants of Missouri, has in each 
case been acquired under the laws of the United States, and 
not during and under the laws of the province of Louisi- 
ana." 

By far the great plurality of the present inhabitants 
of Missouri emigrated thither from the United States 
after the cession; and at least two-thirds of the present slave 
population have been introduced since that era. One may 
smile at the chum of perpetual property in this portion and 
their offspiiug, set up under the treaty of cession, chiefly by 



78 

citizens of these states, strangers in every respect to that 
treaty. Their pretension implies the assumption as novel as 
it is preposterous, that the formula of modern treaties con- 
cerning the security of the inhabitants of a ceded territory, 
as to their property, extends to all those who may at any 
time become inhabitants of the territory; and to the property 
of every kind which may be ever acquired or held there. 
Those Americans or strangers who carried slaves to Mis- 
souri after the cession, did so at their risk; and surely they 
cannot be said to have a property in the offspring of those 
slaves, less equivocal or vulnerable, than that which the 
Pennsylvania slave-holders whose fictitious entail was 
docked by her legislature, possessed under the language of 
the state constitution and the authority of custom. 

Among the suggestions made to deter Congress from at- 
tempting the restriction, there is one of a singular stamp, 
'particularly indicative of the predominance, in this question, 
of passion over reason and genuine sentiment. It is urged 
Lhat Missouri, when become a sovereign state, after accept- 
ing the terms prescribed, would be entitled, in virtue ot her 
sovereignty, to disregard them; and we are told that she 
threatens to pursue this course, should the amendment be 
adopted. The doctrine of her right to violate a solemn pact 
with the Federal Government is, doubtless, in strict con- 
sonance with that of her right to perp tu'ate hereditary ser- 
vitude; it resolves political sovereignty into an unlimit- 
ed, illimitable, and licentious will; it discharges it from all 
duties, and allows it a range of malefaction, bounded only 
by physical means. Of this kind of sovereignty it would be 
no unsuitable prelude, to entrap Congress by the acceptance 
of their terms, with a mental reservation; to secure a place 
in the Union, only to frustrate their views and deride their 

authority! 

But, would the place be secure? Would not good faith be 
considered as its tenure? Would it not be forfeited by a 
violation of the conditions upon which it was bestowed? 
The compact would be dissolved, and the Federal Govern- 
ment released from the obligation of protecting, if they 
could not coerce, the recreant state. Assuming that they 



79 

have a constitutional power to impose the restriction as t© 
slavery, the right of perpetuating this institution, were it 
even of an indifferent or innocent nature, would not exist in 
the new member, upon the established rules of the interpre- 
tation of our system. It is settled that where an authority is 
acknowledged to be granted, either expressly or by implica- 
tion, to the Federal Government, the states are divested of 
whatever authority would be contradictory and destructive 
to the other.* Disobedience on the part of a state to an inr 
junction of Congress exercising a constitutional power, 
would be the same as disobedience to any particular provi- 
sion of the constitution itself. Missouri, then, on the sup- 
position that Congress is competent to pass the amendment, 
would, in disregarding it, act, virtually in the same way, 
and be subject to the same consequences as if she refused 
to retain a republican form of government, undertook to 
make foreign alliances, to coin money, &c. 

The Federal Government might exert against her the 
same means as they would have, to counteract or coerce an 
original member of the Union obstinate in defeating its con- 
stitution and laws. To argue in this manner- — Congress have 
not the power to impose the restriction, because it will be the 
right of Missouri as a state to maintain slavery, is a mere 
begging of the question. The proper course is to enquire 
first whether the power is fairly deducible from the Con- 
stitution and the nature of the case; and if this be so, and 
the power be exercised, all idea of such a right as that 
just mentioned, remaining to Missouri, is precluded, pursu- 
ant to the settled theory of our system, as to points of this 
nature. The acknowledgment of a right of the kind, would 
render necessary that of a similar right in Missouri, and 
the new states already admitted into the Union, with respect 
to the other articles of compact of the ordinance of 1787, 
and all other restrictions of whatever tenor, not expressly 



* The Supreme Court have exemplified this doctrine in the strongest manner 
in their decision of the controversy between the State of Maryland and the Bank 
of the United States. They there limited the application of an admitted authority 
of the states, in order to give full scope and effect to an implied power of thr 
Union 



80 

designated in the Constitution. The condition in which 
this consequence would place some of the most important 
interests of the Union, — lor which those articles and restric- 
tions were meant as safeguards— cvinc^ s the unsound- 
ness of the tenet to which it belongs. It proves, also, that 
without the right of prescribing conditions, and a full dis- 
cretion in the choice of them, the exercise ol the general 
power of admitting new states, would have been so unsafe, 
in regard to those which Congress had particularly in view, 
as to reduce that power to a dead letter.* 

Sould it be taken as certain, that Missouri would repeal 
the article, which she might introduce into htr Constitution, 
as a compliance pro forma with the amendment; and that 
the Federal Government would not be able to vindicate 
their authority so audaciously trampled upon, with the aid 
of the judiciary, or by any other means, still it would be 
incumbent upon them to enact the amendment, as the inde- 
pendent discharge of a duty, and a solemn declaration of 
principle. It is doing much, formally to recognize and 
establish a great and just maxim of human conduct, in an 
affair of the utmost moment to the general felicity and 
honour of mankind. I have hinted in my first pages, the 
degree of delinquency in this respect, with which the old 
Congress and the Convention might, perhaps, be reproach- 
ed. The present question, let the course of Missouri be 
what it may, enables us to make amends for our remissness, 
to use the softest term. We should eagerly seize the oppor- 
tunity as one graciously afforded by Providence, for this 
valuable purpose, and for that of proving to the world the 
sincerity of our past professions, and the validity of our 
pleas, on the subject of negro-slavery. Foremost in the 
performance of this duty of reparation, should be those 

* The true principle of construction, adopted in the case of the Bank, and n 
other instances i^ this — " Even power vested in a government is in its nature 
sovereign, ant' includes by force o! the term, a right to employ all means requisite 
and fairly applicable to the attainment of the ends of such power; and which are 
not precluded by restrictions and exceptions specified in the Constitution; are not 
immoral, are not contrarj to the essential ends ol political society." See the able 
summary of the arguments in the caa of the Hank, by Chief Justice Marshall, 
in the appendix to the 5 th Volume of the Life of Washington. 



81 

two Southern States, to whom the Federal Government and 
the American people owe the disgrace, of the legal prosecu- 
tion of the slave trade under the American flag, for twenty 
years after the establishment of the Constitution. 

The earnestness, I might say vehemence, with which the 
pretensions of Missouri are seconded by the representatives 
of the old shve-holding states, is difficult to be explained 
in any way which would prevent it from being considered, 
as striking evidence of the inconsistency of human nature. 
We could with difficulty imagine that they would now 
deny, the general power of Congress to impose restrictions 
not specified in the Constitution. I need not press this point 
further than to refer again to the facts — of the re-enactment 
of the ordinance of 1787, under the present government; — 
of the formal ratification of it by the southern legislatures-; 
of its being the basis of almost every act creating a Territo- 
ry or new State— of the total silence hitherto observed as 
to that incompatibility with the Constitution, which is sud- 
denly charged upon some of its provisions. We have heard, 
too, the boast that it was framed by an eminent delegate 
of Virginia in the old Congress; and it is not many days 
since we read in the National Intelligencer, a Resolu- 
tion of Congress admitting the State of Alabama into the 
Union " upon an equal footing with the original States in 
all respects whatever;" and referring to an art accepted by 
that state, which deprives it of territorial rights not relin- 
quished by the old members of the Union.* 

But expediency is another and the main ground, of the 
auxiliaries of Missouri in Congress. It was, when he came 
to treat o£ this topic of defence, in regard to the slave-trade, 
that Mr. Fox exclaimed in Parliament, that it was impos- 
sible to have patience on the subject; or to preserve the 
lenity of language and temperance of argument which phi- 
losophy recommended and the cause required. I will not, 

* See the Resolut : on in the National Intelligencer of Dec. 16, 1819. It recites 
that the people of Alabama "have formed for themselves, a constitution and 
state government, in conformity to the principles of the articles of compact of the 
ordinance of 1787" &c, 

h 



82 

however, allow myself to write from the emotions which 
might be kindled by the bare fancy of the recognition of a 
doctrine, under which Lord North and his colleagues would 
have had no cause for self-reproach, had they succeeded in 
their worst designs against these states. I cannot suppose 
that, when expediency is talked of in Congress, it is meant 
that negro-slavery should be maintained and diffused in 
Missouri, because the institution would promote the con- 
venience, or augment the wealth, or flatter the pride of the 
whites; because there would be more of certain products of 
the soil for exportation, or a higher price given for the na- 
tional lands! Something of the kind has, indeed, been hint- 
ed, but the position must be abandoned in a country which 
abolished the slave-trade professedly upon principle. 

We cannot maintain it, who have stigmatized the British 
parliament, for the reasons by which they suffered them- 
selves to be so long deterred from the abolition of that hor- 
rible traffic. These reasons, as we well remember, were,— 
that the national revenues would be impaired,* the trade 
and shipping diminished* the merchants of London and 
Liverpool deprived of employment for their vessels; the 
West India lands sunk in price, and the West India 
planters reduced to a mere competency; the quantity of 
sugar and coffee considerably lessened, and the sugar cane, 
perhaps, abandoned, &c. Can we be so blind as not to ptr- 
ceive, that these reasons were as sound and magnanimous 
in relation to the continuance of the slave-trade, as the sug- 
gestions which I have mentioned, can be in reference to 
the Missouri question, if we admit slavery to be an in- 
justice? 

Was there not, as to the first, as much plausibility, ele- 
vation, and conclusiveness in the plea, that if it were abo- 
lished, the merchants of Liverpool, could not goto the coast 
of Africa with their ships, as there is in our indignant com- 
plaint that if the amendment be adopted, the citizens of the 
slave-holding states will not be able to emigrate with their 

It was also contended that Parliament had not power to abolish the slave 
trade; it being properly within the jurisdiction of the West India Legislatures. 



83 

slaves to Missouri; that is, to a country where, it is ac- 
knowledged, the white man can, by his own labour, pro- 
vide amply for himself, and his family however nume- 
rous; and where he could at once offer a noble, most accep- 
table, and profitable sacrifice to the Deity, by liberating the 
fellow creatures whom a sad fatality sprung from violence 
and fraud, had placed in his power? 

The remarks of Mr. Wilberforce in the British Parlia- 
ment, upon the English expediency, are susceptible of di- 
rect application to the American; and I do not hesitate to re- 
peat some of them here. — " There are persons who adopt 
a bold language," said this philanthropist, u and who de- 
clare without reserve, that religion, and justice, and hu- 
manity command the abolition of the slave-trade, but that 
they must oppose the measure because it is inconsistent 
with the national interest. I trust and believe no such ar- 
gument will be used again; for, what is it but to establish a 
competition between God and Mammon, and to adjudge the 
preference to the latter? What but to dethrone the moral 
Governor of the world, and to fall down and worship the 
idol of Interest? What a manifesto was this to the sur- 
rounding nations? What a lesson to our own people! Come 
then ye nations of the earth, and learn a new code of mo- 
rality from the Parliament of Great Britain. We have dis- 
carded our old prejudices; we have discovered that religion, 
and justice, and humanity are mere rant and rhapsody! 
Why, sir, these are principles which Epicurus would have 
rejected for their impiety, and Machiavel and Borgia would 
have disclaimed as too infamous for avowal, and too injuri- 
ous to the general happiness of mankind. If God in his 
anger would punish us for this formal renunciation of his 
authority, what severer vengeance could he inflict than our 
successful propagation of these accursed maxims? Consi- 
der what effect would follow from their universal preva- 
lence; what scenes should we soon behold around: in public 
affairs, breach of faith, and anarchy, and bloodshed; in pri- 
vate life, fraud, and distrust, and perfidy, and whatever can 
degrade the human character, and poison the comforts of 
social and domestic intercourse. Men must retire to caves 



and deserts, and withdraw from a world become too bad to 
be endured." 

The point of expediency in this question — on the suppo- 
sition that it is fit for consideration at all— may be under- 
stood to refer only to the accommodation and partial relief 
of the old slave-holding Stat s; or to the common gratifica- 
tion and profit. Viewing it in the first aspect alone, and ac- 
knowledging the institution of hereditary servitude to be a 
great moral and political evil, would Congress be justifiable 
in allowing it to he diffustd and perpetuated? If the terri- 
tories owe to the Union a grateful deference, and the dis- 
position to consult even by self denial, the separate inte- 
rests and virtuous prepossessions of so beneficent and liberal 
a parent, it is, on the other hand, incumbent upon the Union 
to study their permanent welfare; and it would be base to 
immolate them to the particular advantage of some of the 
members. 

Although the new State, from sordid and short-sighted 
calculations of interest, should be eager to give into a noxious 
arrangement, yet it ought not to be indulge d; it should not 
be suffered to become the victim either of its own infatua- 
tion, or of the selfishness of others. How bitterly and justly 
have we not reproached England for allowing the destinies 
of the southern Colonies to be so awfully clouded by the 
avarice of her African companies? Confessing that our 
colonial ancestors might have yielded to the peculiar tempta- 
tions to which they were exposed in this respect, and avail- 
ed themselves readily of the privilege of maintaining negro- 
slavery, we have not hesitated to arraign the mother coun- 
try for granting that privilege, instead of crushing at once 
an institution likely to prove so tragical in the end. 

In the comparison, there would be this, in favour of Eng- 
land — that the evil and guilt of it were not thoroughly known 
to her; or at least that she had never trumpeted them to 
the world. Our southern States have done so at times al- 
most emulously, imputing the guilt to the mother country, 
and disclaiming any other apology for the continuance of 
th evil, than the necessities of their situation. I will select 
Virginia as an example on this head, and quote a part of the 
testimony she has borne by the channel of her most eminent 



85 

men, to the character of the institution. The following is a 
passage of the petition which her assembly presented to the 
British throne in 1772, against the further importation of 
negroes. 

" We are sensible that some of your majesty's subjects of 
Great Britain may reap emolument from this sort of traffic, 
but when we consider that it greatly retards the settlement 
of the colonies, with more useful inhabitants, and may in 
time have the most destructive influence, we presume to 
hope, that the interest of a few will be disregarded when 
placed in comp< tition with the security and happiness of 
such numbers of your majesty's dutiful and loyal subjects." 

I know that attempts are made to invalidate the authority 
of the celebrated passages respecting slavery, of Mr. Jeffer- 
son's able and valuable work, the Notes on Virginia. But 
they stand as the evidence of an eye witness of great saga- 
city, and the closest observation, writing in the mature vigour 
of his uncommon faculties, and having every motive to 
soften the truth. The improvement which has since taken 
place in the condition of the slaves, cannot affect the essen- 
tial properties of the institution, to which he refers; and 
their considerable increase in number gives additional force 
to some of his remarks. I will extract but a portion of what 
is so familiar to the public. 

" In the very first session held under the republican go- 
vernment the assembly passed a law for the perpetual pro- 
hibition of the importation of slaves. This will in some 
measure, stop the increase of this great political and moral 
evil, while the minds of our citizens may be ripening for a 
complete emancipation of human nature." 

" With what execration should the statesman be loaded, 
who permitting one half of the citizens thus to trample on 
the rights of the other, transforms those into despots, and 
these into enemies, destroys the morals of the one part, and 
the amor patriae of the other. For if a slave can have a 
country in this world, it must be any other in preference to 
that in which he is born to live and labour for another: in 
which he must lock up the faculties of his nature, contribute 
as far as depends on his individual endeavours to the eva- 



86 

nishment of the human race, or entail his own miserable 
condition on the endless generations proceeding from him. 
With the morals of the people, their industry also is de- 
stroyed. For in a warm climate, no man will labour for 
himself who can make another labour for him. This is so 
true, that of the proprietors of slaves a very small propor- 
tion indeed are ever seen to labour. And can the liberties 
of a nation be thought secure when we have removed their 
only firm basis, a conviction in the minds of the people that 
these liberties are of the gift of God? That they are not to 
be violated but with his wrath? Indeed I tremble for my 
countrv when I reflect that God is just: that his justice 
cannot sleep for ever: that considering numbers, nature and 
natural means only, a revolution of the wheel of fortune, an 
exchange of situation is among possible events: that it may 
become probable by supernatural interference! The Al- 
mighty has no attribute which can take side with us in such 
a contest." 

The volume called "the Debates of the Convention of 
Virginia," is a lasting record of opinions similar to those of 
Mr. Jefferson, from the mouths of politicians of whose wis- 
dom and patriotism that state boasts not a little, nor with- 
out reason. I will select, at random, some sentences from 
the volume, prefixing the names of the speakers. 

Governor Randolph. — u The scattered state of our popu- 
lation, over so extensive a country, is one point of weakness: 
I wish, for the honour of my countrymen, that this were 
the only one. 

" There is a circumstance which renders us more vulne- 
rable. Are rue not weakened by the population of those whom 
we hold in slavery? The day may come when they may 
make impression upon us. Gentlemen who have been long ac- 
customed to the contemplation of the subject, think there is 
a cause of alarm in this case: the number of those people, 
compared to that of the whites, is in an immense propor- 
tion." 

The same. — " I beseech you to consider, whether Virgi- 
nia and North Carolina, both oppressed with debts and 
s/r/urv, can defend themselves externally, or make their peo- 



87 

pie happy internally. North Carolina having no strength but 
militia, and Virginia in the same situation, will make, I 
fear, but a despicable figure in history." 

The ■same,'— •*' Is it unnecessary to provide against future 
events? The advice that would attempt to convince me of 
so pernicious an error as that Virginia can stand by herself, 
I treat with disdain. Our negroes are numerous and dailv 
becoming more so. When I reflect on their comparative 
number, and comparative condition, I am the more per- 
suaded of the great fitness of our becoming more formi- 
dable," 

Mr. Mason. — u The government does not attend to our 
domestic safety. It authorises the importation of slaves 
for twenty odd years; instead of securing and protecting us, 
the continuation of this detestable trade adds to our "weak- 
ness. Though this evil (of slaves) is increasing, &c. The 
augmentation of slaves weakens the States. Much as I va- 
lue an union of all the States, I would not admit the South- 
ern States into the Union, unless they agreed to the discon- 
tinuance of this disgraceful trade; because it would bring 
xveakness and not strength into the Union." 

Patrick Henry. — '* Another thing will contribute to bring 
general emancipation about. Slavery is detested — We feel 
its fatal effects — We deplore it with all the pity of huma- 
nity. I repeat it again, that it would rejoice my very soul 
that every one of my fellow beings was emancipated. As 
we ought with gratitude to admire that decree of Heaven, 
which has numbered us among the free, we ought to lament 
and deplore the necessity of holding our fellow-men in bon- 
dage. " 

Mr. Dawson. — "I have such an aversion to the bitter 
cup of slavery that in my estimation a draught is not sweet- 
ened, whether administered by the hand of a Turk, a Bri- 
ton, or an American." 

Mr. Lines. — " But we are told that the New-Englanders 
mean to take our trade from us, and make us hewers of 
wood and drawers of water; and the next moment that they 
will emancipate our slaves! But how inconsistent is this? 
Our antagonists tell you that the admission of the importa - 



88 

tion of slaves for twenty years, shews that their policy is to 
keep us weak; and yet the next moment they tell you that they 
intend to set them fret ! If it be their object to corrupt and 
enervate us, will they emancipate our slaves.? Thus they 
complain and argue against it on contradictory principles." 
Mr. Zachariah jfohnson. — " Our opponents tell us that 
they see a progressive danger of bringing about emancipa- 
tion. The principle has begun since the revolution. Let us 
do what we will, it will come round. Slavery has been the 
foundation of that impiety and dissipation, which has been 
so much disseminated among our countrymen. If it were 
totally abolished, it would do much good." 

Another voice from Virginia has been raised on this sub- 
ject, in a strain more copious and not less emphatic; carry- 
ing with it the utmost degree of authority. I refer to what 
Judge Tucker has published in his edition of Blackstone's 
Commentaries. He has been accused of weakness in be- 
lieving in the practicability of the abolition of slavery in 
Virginia; but his error on this point, if it be one, does not 
detract from the weight of his evidently deep, mournful con- 
viction of the necessity of the measure. A personage so 
conspicuous for the extent of his enquiries in the moral sci- 
ences; filling a high judicial station; born amid the slavery 
of which he discourses; incessantly conversant with all its 
properties and effects; will be heard as oracular on the sub- 
ject, however warmly his judgment as to the cure mav be 
assailed. We find him, in the year 1795, using this lan- 
guage. " The introduction of slavery into this country is, at 
this day, considered among its greatest misfortunes."* And, 
in 1803, he went fully into the question, in his Appendix to 
the first volume of his author. As I wish to use him only 
as a witness to the practical character of the institution, I 
will merely take some few of his statements in relation to it. 

" Early had our forefathers sown the seeds of an evil, 
which, like a leprosy, hath descended upon their posterity 

• Letter to Dr. Belknap, 4th vol. Mass. Hist. Collec. 



with accumulated rancour, visiting the sins of the fathers 
upon succeeding generations. 

" From a view of our jurisprudence respecting slaves, 
we are unavoidably led to remark, how frequently the laws 
of nature have been set aside in favour of institutions, the 
pure result of prejudice, usurpation, and tyranny. Wc have 
found actions, innocent, or indifferent, punishable with a ri- 
gour scarcely due to any, but the most atrocious offences 
against civil society; justice distributed by an unequal mea- 
sure to the master and the slave; and even the hand of mer- 
cy arrested, where mercy might have been extended to the 
wretched culprit, had his complexion been the same with 
that of his judges. 

" Will not our posterity curse the days of their nativity 
with all the anguish of Job? Will they not execrate the 
memory of those ancestors, who, having" it in their power to 
avert evil, have, like their first parents, entailed a curse 
upon all future generations? We know that the rigour of 
the laws respecting slaves unavoidably must increase with 
their numbers: What a blood-stained code must that be 
which is calculated for the restraint of millions held in bon- 
dage! Such must our unhappy country exhibit within a cen- 
tury, unless we are both wise and just enough to avert from 
posterity the calamity and reproach, which are otherwise 
unavoidable." 

Stronger testimony than this could not be adduced; but 
we have much that is more particular, and of more recent 
date, from similar sources. I will make use of some of the 
representations which were published in 1817* by General 
Robert G. Harper; a gentleman born and brought up in one 
of the southern states; now resident in a slave-holding state; 
who has personally surveyed almost every part of our coun- 
try, with a most attentive eye; and whose powers of discri- 
mination and judgment it would be superfluous to celebrate. 
"No person, says he, who has seen the slave-holding states, 

* Letter to the Secretary of the Colonization Society. See also, in the first an- 
nual Report of this Society, the description given by the Hon. Mr. Men ot 
Virginia, of the condition of the lowlands of that state, produced by the institu- 
tion of slavery. 

M 



90 

and those where slavery does not exist, and has compared 
e^ cr so slightly their condition and situation, can have failed 
to be struck with the vast difference, in favour of the latter. 
This difference extends to every thing, except only the cha- 
racter and manners of the most opulent and best educated 
people. These are very much the same every where. But 
in population, in the general diffusion of wealth and comfort, 
in public and private improvements, in the education, man- 
ners and mode of life of the middle and labouring classes, 
in the face of the country, in roads, bridges, and inns, in 
schools and churches, in the general advancement of im- 
provement and prosperity, there is no comparison. The 
change is seen the instant you cross the line, which separates 
the country where there are slaves, from that where there 
are none. Even in the same state, the parts where slaves 
most abound, are uniformly the worst cultivated, the poor- 
est, and the least populous; while wealth and improvement 
uniformly increase, as the number of slaves in the country 
diminishes. I might prove and illustrate this position by 
many examples, drawn from a comparison of different 
states, as Maryland and Pennsylvania, and between different 
counties in the same state, as Charles County and Frederick 
in Maryland; but it is unnecessary; because every body .vho 
has seen the different parts of the country, has been struck 
b) this difference. 

" Whence does it arise? I answer from this; that in one 
division of the country the land is cultivated by freemen, for 
their own benefit; and in the other almost entirely by slaves, 
for the benefit of their masters. It is the obvious interest of 
the first class of labourers, to produce as much and consume 
as liitle as possible; and of the second class to consume as 
much and produce as little as possible. What the slave con- 
sum^ s is for himself; what he produces is for his master. 
All the time that he can withdraw from labour is gained to 
himself: all that he spends in labour is devoted to his mas- 
ter. All that the free labourer, on the contrary, can produce 
is for himslf: all that he can save is so much added to his 
on n stock. All the time that he loses from labour is his own 
loss. 



91 

" This, if it were all, would probably be quite sufficient, to 
account for the whole difference in question. But unfor- 
tunately it is far from being all. Another and still more in- 
jurious effect of slavery remains to be considered. 

"Where the labouring class is composed wholly, or in a 
very considerable degree of slaves, and of slaves distin- 
guished from the free class by colour, features and origin, 
the ideas of labour and of slavery soon become connected, 
in the minds of the free class. This arises from that associ- 
ation of ideas, which forms one of the characteristic features 
of the human mind, and with which every reflecting person 
is well acquainted. They who continually from their infancy 
see black slaves employed in labour, and forming by much 
the most numerous class of labourers, insensibly associate 
the ideas of labour and of slavery, and are almost irresisti- 
bly led to consider labour as a badge of slavery, and conse- 
quently as a degradation. To be idle, on the contrary, is in 
their view the mark and the privilege of freemen. The effect 
of this habitual feeling, upon that class of free whites which 
ought to labour, and consequently upon their condition and 
the general condition of the country, will be readily per- 
ceived by those who reflect on such subjects. It is seen in 
the vast difference between the labouring class of whites in 
the southern and middle, and those of the northern and 
eastern states. Why are the latter incomparably more indus- 
trious, more thriving, more orderly, more comfortably situ- 
ated, than the former? The effect is obvious, to all those who 
have travelled through the different parts of our country. 
What is the cause? It is found in the association between 
the idea of slavery, and the idea of labour; and in the feel- 
ing produced by this association, that labour the proper oc- 
cupation of negro slaves, and especially agricultural labour, 
is dt grading in a free white man. 

" It is therefore obvious that a vast benefit would be con- 
ferred on the country, and especially on the slave-holding 
districts, if all the slave labourers could be gradually and 
imperceptibly withdrawn from cultivation, and their place 
Supplied by free white labourers." 

Such are the warning accents of the South itself.— 



92 

Nearly the same have been uttered in Congress within the 
few years past, by representatives from the same quarter. 
There are other traits of evil and opprobrium so notorious 
in the case, that if we had not direct testimony with respect 
to them, it might be considered as given. Of these, I will 
notice merely the general character and condition of the 
negro slave as such. Mr. Clay, the distinguished speaker of 
the Federal House of Representatives, has described the 
whole class as '* degraded and debased, aliens to the society 
of which they are members, and cut off from all its higher 
blessings."* This outline might be sufficient, but it is in- 
complete; and I do not wish to proceed with it, or fill up 
the canvas. Of the negro-slave, however, I would add, that 
from the brutal ignorance in which he is and must be kept, 
he almost ceases to be a moral agent; he scarcely prefers a 
claim to the quality of man. 

Man is a being, holding large discourse 
Looking before and after. 

A slave is incapable of looking either before or after; he can 
feel comfort, only in proportion as he is destitute of all manly 
pride; as his mind is darkened, and rendered callous to its 
abjection. Every thing, indeed, is told of his place in the 
scale of animated creation, and of his general lot, in men- 
tioning one of the numerous varieties of wretchedness and 
degradation to which he is liable, and through which he is 
almost daily seen passing — the Sale at Auction; not singly 
alone, but in family groupes, to be dragged apart as it may 
happen, in the gripe of the highest bidders, and driven un- 
der the lash to a new scene of bondage, with the chance of 
forming new associations and sympathies not secure in their 
progress or at the moment of their maturity, from being se- 
vered and for ever dissolved in the same ruthless manner. 

Think of hundreds of thousands — nay millions, for it is 
thus we must now count — of human beings, in whom the 
ends of Providence for the species, are thus horribly de- 
feated; the divine image so revoltingly defaced, and the 
majesty of the Creator so perilously outraged: — Add to 

* Speech to the Colonization Society. 



93 

this all the other traits and effects of the institution, con- 
fessed by the Southern States; and say, whether it is one 
which those Siates can, in consistency, or without crime, 
seek to spread over a new and vast theatre, for the mitiga- 
tion of their own sufferings or fears under it — Whether Con- 
gress can lend themselves to such an enterprise, for such a 
purpose. 

If it could be considered as a certain means of the ulti- 
mate preservation of some of the states from servile wars 
of a sanguinary and destructive character, we might doubt 
that the Federal Government would have a sufficient apo- 
logy even in this object, for allowing the mildew to be shed 
on so extensive and fair a creation. But, it would, in that 
point of view, afford at most only a palliative and respite. 
The North West Territory constituted a similar case; and 
the enlightened men, who, at the time of the cession, con- 
ducted the affairs of Virginia, were far from thinking that 
the safety of the South required that it should be used as 
an outlet, and made a new plantation and nursery of the evil. 
They cannot be alleged to have foreseen or expected the 
acquisition of the countries beyond the Mississippi; and the 
extracts which I have made from the Virginia debates, 
show, that they were even more alive to the danger* growing 
out of the increase of their slaves, than their successors 
would seem to be. They submitted cheerfully, in the name 
of their constituents, to the privation of the faculty of emi- 
grating with their slaves to the fine regions of the Ohio and 
Illinois; fully compensated, as they doubtless thought, by 
the rectitude of the proceeding of preserving those regions 
from negro-slavery; and the greater security from its perils, 
with which they provided their posterity and the Union, in 
the multiplication of kindred and associated communities 
free from this cause of weakness. 

They were too well versed in the elements of political 
economy to hazard the idea now urged, that the number of 
the slaves would be the same, whether these remained con- 

* They were well aware that it depended upon the consideration of the po- 
sitive number of the blacks beyond a certain point, rather than upon the compa- 
rative, in reference to that of the whites. 



94 

lined to the original domain of slavery, or were dispersed 
over the new states which might be admitted into the Uni- 
on. If this idea were seriously entertained, it would argue 
an astonishing ignorance of the most prominent laws of the 
animal kingdom, and of the diffusion of mankind over the 
earth. So early as the year 1751, Dr. Franklin taught us 
what would lead to a very doctrine; as the following extracts 
from one of his essays of that dau * will shew. 

" Any occasional vacancy in a country (if the laws are 
good) will soon be filled by natural g< neration. Who can 
now find the vacancy made in Sweden, France, or other 
warlike nations, by the plague of heroism forty vears ago; in 
France, by the expulsion of the Protestants; in England, by 
the settlement of her colonies; or in Guinea, by a hundred 
years exportation of slaves, that lias blackened half Aynericu?" 

" There is no bound to the prolific nature oi plants, or 
animals, but what is made by their crowding and interfer- 
ing with each other's means of subsistence. Was the face 
of the earth vacant of other plants, it might gradually be 
sowed and overspread with one kind onlv, as, for instance, 
with fennel; and were it empty of other inhabitants, it 
might, in a few years, be replenished from one nation only, 
as, for instance, with Englishmen. Thus there are supposed 
to be now upwards of one million of English souls in North 
America (though it is thought scarce 80,000 have been 
brought over sea) and yet, perhaps, there is not one the 
fewer in Britain, but rather many more, on account of the 
employment the colonies afford to manufactures at home." 

u In fine, a nation well regulated is like a polypus: take 
away a limb, its place is soon supplied; cut it in two, and 
each deficient part shall speedily grow out of the part re- 
maining. Thus, if you have room and subsistence enough, 
as you may say, by dividing, make ten polypuses out of one, 
you may, of one, make ten nations, equally populous and 
powerful; or, rather, increase a nation ten fold in numbers 
and strength." 

I feel in some sort ashamed to appeal further to autho^ 

* On Population, 4th vol. Am. cd. of hi3 works, 



9S 

rity on this point; but as the axioms, hitherto so called, both 
of the moral and physical economy of nature, seem des- 
tined to be controverted in this Missouri question, I will 
remark, that Malthus confirms the opinions of Franklin; 
and will quote from the former a single passage as an illus- 
tration. " Population has a constant tendency to increase 
beyond the means of subsistence, whatever these may be. 
Africa has been at all times the principal mart of slaves. 
The drains of its population in this way have been great 
and constant, particularly since their introduction into the 
European colonies; but, perhaps, as Dr. Franklin observes, 
it would be difficult to find the gap, that has been made by 
a hundred years exportation of negroes, which has black- 
ened half America. For, notwithstanding this constant 
emigration, the loss of numbers from incessant war, and the 
checks to increase, from vice and other causes, it appears 
that the population is continually passing beyond the means 
of subsistence."* 

Before the settlement of the country North West of the 
Ohio, the proposition that the numbers of the New Eng- 
land race would be the same, whether they remained at 
home altogether, or emigrated thither, as they did, in a 
pen nnial stream, would have been quite as true and plausi- 
ble as is that which I have cited respecting the negro slaves. f 
As to the last, wherever they are well treated, the power of 
population is left to exert itself almost with perfect liberty. 
With them, it meets few or none of the moral checks, which 
limit it among freemen.:}: Thus, as the negroes are to have 
in Missouri, according to the anti-restrictionists, a more 
abundant supply of wholesome food, they must multiply 
there at least as fast as the whites; and their treatment in 
our Southern States being asserted to be good, and likely 
to become better, were a part of them removed — they must, 

* 1st vol. Essay on Population, B. I. 

f Dr. Seybert remarks, in his Statistics, that " in Massachusetts, Rhode Is- 
land, New Jersey, and Delaware, all of them states whose population is migra- 
tory, there was an increase of the rate of the increase of the population, as well 
as an actual increase of their numbers." And he asks, " Did the migrations from 
these states tend to advance the rate of their increase!" The answer must un- 
doubtedly be in the affirmative. 

i See Malthus. 



96 

in those states, soon again reach the maximum of numbers 
for which means of subsistence could be had.§ You would 
then have at no very distant period of time, nearly an equal 
intensity of the evil in its original seat; and, in the new and 
more extensive field, a multifarious growth rapidly advan- 
cing to the same point. 

Our experience in this respect is complete and indisput- 
able. From 1790 to 1810, Maryland, Virginia, and the two 
Carolinas, supplied Georgia, Kentucky, and Tennessee with 
a multitude of slaves. Yet their number received an asto- 
nishing increase in the former; the parent stock proved the 
more prolific, and quickly repaired the drain. Dr. S^.ybert, 
taking three periods — from 1790 to 1800, from 1800 to 
1810, and 1790 to 1810 states, that in North Carolina, for 
every period, the slaves increased in a ratio greater than the 
free inhabitants; and that in Virginia, and South Carolina, 
there were irregularities. " In Virginia, during the two first 
periods, the slaves increased in a ratio greater, and during 
the third period in a ratio less, than the free population. In 
South Carolina, during the first and third periods, the slaves 
increased in a ratio less, and during the second period in a 
ratio greater than the free population." In all these states, 
he adds, the number of slaves xvas actually augmented. The 
following table of the proportion of the free persons in them 
to the slaves, at different periods, will set the matter under 
consideration in a still stronger light. 



In iroo 



In 1800 ! In 1810 



4754 


4i 50 


[ 4516 


82'40 


6 1 35 


67 43 


.)40') 


.58 01 


43.66 


80 60 


73-28 


89-76 



■Maryland, for every 100 free poisons, there were 
Virginia, do. do. 

Nortli Carolina, do. do. 

South Carolina, do. do. 

During the periods above mentioned, importations from 
abroad were forbidden in Maryland, Virginia and North 

§ With respect to a state like Virginia, for instance, possessing a fruitful soil, 
and having but 13"92 persons to the square mile, it could hardly he supposed, 
thai she would labour under the apprehension of wanting, within half a century, 
tin means of subsistence for a part of her population, or being obliged to stint it, 
though it should continue to double every twent] -two or twenty-five years. Con- 
necticut has 50o4 persons to the square mile, and yields them a good supply of 
food. The United Provinces of Holland hav '.',".'•, and depend upon the products 
of their own agriculture — All this illustrates in the comparison the blighting in- 
fluence of the institution of slavery 1 



97 

Carolina; but allowed in South Carolina. The addition 
from this source was not so great as to deserve to be taken 
into the account. On the other hand, the natural increase in 
the states supplied with slaves, kept pace or rather in advance. 
Kentucky is a remarkable instance. In 1800, her slave po- 
pulation exceeded somewhat forty thousand; by 1810, it 
was double. She received, no doubt, in that interval, large 
accessions from without; but still the increase by procrea- 
tion would have given a duplication in twenty years. Ken- 
tucky may be taken as an example of what would occur 
beyond the Mississippi, adopting the data as to more abun- 
dant and better food, &c. from which the anti-restrictionists 
reason. If we furnish this new field for the black popula- 
tion — that is; a scope co-extensive with that open to, the 
white, we shall establish a kind of race between the two as to 
numbers; to be won infallibly by the former, unless it be 
stayed in its progress by the sword. What a dreadful fu- 
turity for this empire, and for the cause of liberty, does not 
this fact present, in either alternative! 

Much stress is laid upon the humanity of providing an 
outlet for the supernumerary slaves of the old states, and 
an opportunity to any portion of them, of being removed to 
a scene of greater abundance and ease. Were we to admit 
that the physical condition of the few thousands who might 
be annually transported thither, would be improved, could 
we, however, regard this as a consideration sufficient to jus- 
tify Congress in allowing so vast and favoured a tract of 
the earth, to be subjected to the institution of slavery, with 
its pestilent genius and its hideous shapes? Would there 
not be an infinitely more elevated and comprehensive hu- 
manity in averting it from the white population who, we 
may trust, will cover that region; or even, abstractly, in pre- 
cluding the existence of that host of black slaves with which 
we may be sure it will be cursed, should the pretensions of 
Missouri be ratified. A certain quantity of animal food 
more or less, a less oppressive and protracted toil, will not 
alter the generical character of the bondsman. The class 
will remain what Mr. Clay has described them to be, and 
with the traits which I have added to his profile sketch. 



98 

Real humanitv shudders at the idea of the indefinite multi- 
pi cttion of such a class; as philanthropy will shudder at 
even stride of American power, if we are always to carry 
this ghastly vision in our train. Herds of slaves must be as 
offensive in their existence as men, to the Deity, who sees 
in it the profanation of his glorious work, and the denial or 
oblivion of his omnipotence, as it is to the pride of our 
cultivated reason, and the sensibility of our purified hearts— 

And what man, seeing this, 
And having human feelings, would not blush, 
And hang his head, to think himself a man? 

It is hard to believe, that the number carried from the 
old States, would gain in any very material degree by the 
tranalation. Many of them must fall into the hands of 
traders; there must be a severance of natural and tender 
ties; the exchange of masters — of the hereditary and pater- 
nal owner, for the adventurer — may prove, by the difference 
of character, an aggravation of their general lot, not to be 
compensated bv a more liberal supply of food and clothing; 
for this is all that is promised for them: it is their animal 
existence alone we are taught to hope may be improved. 
Yet how much additional misery even to the slave, can we 
not conceive as consistent with the kind of advantage which 
I have mentioned! In new and distant settlements, where 
the speedv acquisition of wealth is the ruling passion, and 
the censorship over private conduct is exceedingly slight, 
if any prevail,— what securitv is there that tender youth, 
or infirm age, or disease will be a title to exemption from 
:he severest labours of the field? — that the privilege of the 
Sabbath may not be denied, and the repose of the night 
invaded? — that all the excesses of violence natural to the 
possession of an absolute personal dominion, may not be 
habitually indulged? Under such circumstances, the hope 
of any literary or religious instruction such as is sometimes 
permitted in the South, would be entirely chimerical. 
This consolation for the bruised spirit must be altogether 
withheld. 

The amelioration of the condition of the slave in our pre- 
sent slave holding states is ascribed, in great part, to the 



99 

influence of a sound and active public opinion, created al- 
most, since the establishment of the present Federal Go- 
vernment. Will he find the same public opinion, — his best 
protection, — in all the districts beyond the Mississippi to 
which he will be liable to be dragged? This may be doubt- 
ed. The influence of positive law in his favour,— feeble 
every where, because it cannot reach domestic life in some 
of its most oppressive details— must, too, be considerably 
less in remote situations and widely scattered settlements. 

Something is said of the greater probability and better 
opportunity of universal emancipation: But who can be the 
dupe of such an illusion? The extension of slavery to four 
new States has not brought us nearer to the object; it is 
notoriously the farther removed on this account. The en- 
hancement of the value of a possession nejyer yet engender- 
ed a greater readiness to relinquish it gratis. When the 
slaves shall abundantly multiply, as they must do, we will 
hear of laws against the manumission of individuals, enac- 
ted upon the same grounds as those which are alleged for 
the similar legislation in the old States. We shall hear of 
the institution being permitted or exacted, as it has been 
with us, in one district of country, because it had grown to 
a dangerous size and taken indestructible root in the neigh- 
bouring one; and propagating itself thus, it will be always 
declared and thought, at every enlargement, more difficult 
t© be subdued, or even assailed. 

The general habit of slave-holding has never produced 
and never will produce, in individuals, the disposition to 
forsake the practice. The very multitude of the victims 
blunts our natural sense of the enormity of the institution; 
familiarity with it not only softens its horrors, but hides its 
dangers, to the eye of the mind; a personal interest in its 
continuance doubly locks the heart and hoodwinks the un- 
derstanding. The fact is sufficiently notorious, that contests 
have taken place in the States northwest of the Ohio, hap- 
pily rescued by Congress from this bane, of which the sub- 
ject was its revival there; and that, of the parties, those ac- 
customed to it in their original residence, have been uui 
formly arrayed on the affirmative side. 



100 

Humanity in this question of negro-slavery, is in general 
only a phasis of expeduncy- It is a suspicious plea: the 
abettors of the slave trade in England, vociferated it inces- 
santly, and affirmed that the lot of the negro was vastly 
improved by his removal from his native soil to the planta- 
tions of the West Indies. Mr. Wilberforce animadverted 
upon the case, in language which I cannot refrain from re- 
peating. 

" These pretended principles of humanity are the very prin- 
ciples on which have been rested the grossest systems of 
bigotry, and superstition that ever disgraced the annals of 
mankind. On what other principles was it that Mahomet 
sent forth his Mussulmen to ravage the world? Was it not 
these that lighted the fires of the inquisition? Have not both 
these systems been founded on the notion of your having a 
right to violate the laws of justice, for the purposes of hu- 
manity? Did they not both plead that they were promoting 
the eternal happiness of mankind; and that their proceedings 
were therefore to be justified on the dictates of true and 
enlarged benevolence? But the religion I profess is of ano- 
ther nature; it teaches me first to do justice, and next to 
love mercy; not that the claims of these two will ever be 
really found to be jarring and inconsistent. When you 
obey the laws of God, when you attend to the claims of jus- 
tice, you will then also best consult and most advance the 
happiness of mankind. This is true, this is enlarged bene- 
volence; and of this it may be affirmed in the language of a 
great writer, ' that her seat is the bosom of God, her voice 
the harmony of the world.' " 

I have already, by the foregoing considerations, deter- 
mined how far it is expedient for the countries beyond the 
Mississippi to receive domestic slavery — of which a great 
lawyer has justly said that " in whatever light we view it, 
it may be deemed a most pernicious institution; — imme- 
diately so to the unhappy person who suffers under it; 
finally so to the master who triumphs in it, and to the state 
which allows it."* Some few more points illustrative of its 
Hargrove. — Argument in the case of the negro Somerset. 



loi 

nature with us, deserve to lie glanced at in reference to the 
interests of the territories of which Congress is the tutelary 
director. 

Dr. Franklin, in the essay on population* which I have 
quoted above, enumerating the causes that impede the pro- 
gress of white population and even tend to its reduction, 
gives a conspicuous place to the introduction of slaves. His 
language is as follows. 

" The negroes brought into the English sugar islands 
have greatly diminished the whites there; the poor are by 
this means deprived of employment, while a few families 
acquire vast estates, which they spend in foreign luxuries; 
and educating their children in the habit of those luxuries, 
the same income is needed for the support of one, that 
might have maintained one hundred. The northern colonies 
having few slaves, increase in whites. Slaves also pejorate 
the families that use them; the white children become 
proud, disgusted with labour, and, being educated in idle- 
ness, are rendered unfit to get a living by industry." 

A gentleman of Baltimore, in a pamphletf which will be 
read by all who wish to understand the subject of our ne- 
gro-slavery, has examined it particularly under this aspect 
of its effect upon the numbers of the w. ite population, and 
marshalled the following propositions:— 1. In a slave-state, 
a slave population increases by procreation faster than the 
white population. 2. The white population in a slave- 
state does not increase so fast by at least thirty or forty per 
cent, in a term of twenty years, as the same population does 
in a state where there are none or but few slaves. 3. Every 
slave, in whatever country, may be said to occupy a place 
which would be filled by a freeman. 4. The supply of the 
means of subsistence is not so great in a state where slave- 
ry exists, as it would be were there no slavery; and conse- 
quently, the whole population is the less numerous. 

These propositions are fully sustained and developed in the 

pamphlet cited above; and I need not, therefore, dwell upon 

them for the purpose of demonstration. Indeed, they must 

be self-evident to all who have attended to the census of 

* 175L f The Missouri Question: by Daniel Raymond, Esq. 



102 

the United States, and possess any knowledge of political 
arithmetic and the principles of population. 

Applying them to the question before us, we are led to the 
following as certain const, quences of the establishment of 
negro slavery beyond the Mississippi. — The soil will not be 
made to yield an equal fund for the subsistence of man. — 
The whole population will be less in numbers. — The free 
white population will increase less rapidly there, by nearly 
one half, than it otherwise would. — It will be less in positive 
amount, in more than this proportion: — It will be finally 
outnumbered by the slavt -population. 

1 he last of these consi quences is especially appalling, 
when we consider that no country in which personal slavery 
has prevailed to any considerable extent, has escaped servile 
wars; and that the fruits of a century of civilized industry, 
the proudest monuments of the most refined art, and the 
most admirable creations of state wisdom may be laid waste 
in the struggles, and for ever lost in the triumpti, of the des- 
perate multitude, whom a jealous policv had debarred from 
knowing their value, and a cruel yoke prepared for every 
excess of havoc. Historv both ancient and m>dern is full of 
example ot furious and destructive revolt. The Helots had 
nearlv destroyed the Spartan government which so long de- 
rided the assaults of other fo'-s. Rome, even in the meri- 
dian of her power and glor\,was brought to the brink 
of ruin by the slaves whom she despised. Numerous 
examples of a much more recent date and startling admoni- 
tion, might be cited. Why should the countries beyond the 
Mississippi, of all that have cherished the same institution, 
alone escape this great calamity of rebellion, one of its na- 
tural appendages? Do we count upon a special dispensation 
in their favour, from that Almighty and Impartial Judge, 
who, Mr. Jefferson tells us, " has no attribute which can 
side with the American master in such a contest?" 

The public welfare, which the Federal Government is 
charged to promote, in administering the Constitution, is 
not that of the moment; the posterity to which it is " to se- 
cure the blessings of liberty," is not merely the next gene- 
ration; "the people of the United States" committed to its 



303 

care, are not solely those who inhabit the present United 
States, but all who shall be at any time embrace 1 within the 
future compass of the Union. It must look forward, then; 
combine all probabilities and chances in its deliberations; 
and consult the interests of the whole empire in their most 
enlarged sense, and equitable connexion. With respect to 
the establishment of slavery in the Missouri, there is no 
view which it could take of them, or of its own duty, that 
would not dictate every effort for the prevention of that ca- 
tastrophe, unless " experience be a cheat, and fact a liar."—. 
As to the Constitution, it points decisively and steadily in 
the same direction. To the legislator who still doubts, I 
would again say, using the impressive language of the poet— 

" But read the instrument, and mark it well: 
Th' oppression of a tyrannous control* 
Can find no warrant there." 



NOTES. 



Note A. — Page 4. 

THE leaders of the Revolution frequently referred in tlieir public papers, to 
the maxims of the New Testament respecting the equality of mai.kind in the 
sight of Heaven, and the bonds of brotherhood declared to involve the whole 
human race We have been scandalized of late, in this country, by attempts to 
justify slavery upon the authority of scripture. No sophism can now be put forth 
on this subject, which is not to be found abundantly refuted in the printed dis- 
cussions of England concerning the slave trade. A great man of Virginia, Patrick 
Henry, taught us a lesson which it is almost too soon to forget " It is a debt we 
oiue to the purity of our religion, to show that it is at variance with that law 
■which warrants slavery."* In truth, there is scarcely a parable or sermon in the 
■whole history of the Saviour's life, but what presents the strongest argurumts 
against slavery. The abridgment of this evil is among the most remarkable tri- 
umphs of Christianity; and nothing illustrates the influence in this respect, of its 
spirit, more, than the general opinion which at first prevailed wherever negro- 
slavery existed, that the black would be necessarily free when baptised. I sub- 
join some extracts from good authorities to show the operation of Christianity on 
this score. 

From Ward's Law of Nations. 

" The existence of slavery, was long protected in Europe. We saw it univer» 
sal before the Christian sera; nor could it be expected that a new religion whose 
establishment was accomplished under a cruel length of persecution, and which 
looked for success to insinuation and conviction alone, should immediately effec- 
tuate the reforms which it came only to recommend. Christianity however, in 
conformity with its principles, claims the merit of having gone farthest towards 
the abolition of this debasing institution. It is indeed the great, and almost the 
only cause of its abolition, in the opinion of Grotivs. 

"When however the milder doctrines preached by Christ, came really to be 
well understood and disseminated in their genuine purity; the effect upon this 
part of the then received law, was visible and permanent. The professed and 
assigned reasons for most of the charters of manumission, from the time of Gkk- 
sort the Great, to the thirteenth century, were the religious and pious conside- 
rations of the fraternity of men, the imitation of the example of Christ, the 
love of our Maker, and the hope of redemption. Enfranchisement was frequently 
given upon a death-bed, as the most acceptable service that could be offered, and 
when the sacred character of the priesthood came to obtain more universal vene- 
ration; to assume its functions was the immediate passport to freedom. f 

" We have seen in a former chapter the universal existence of slavery during 
the earlier ages, and it was shown to be chief]} owing to the efforts of Christianity 



* Letter to Anthony Benezet, published in the Life of that Philanthropist. 

f The enfranchisement of slaves in England arose most particularly from these 
principles ot piety: The manner of it has been well described by bir 1 nomas 
Smith (Commonwealth, 3. 10.) and Dr. Brady (Gen. Pre£ to his HistJ 

o 



106 

that the institution was abolished. In the attempt to effectuate the abolition, and 
th success which in the end attended it, we have a full proof of the general in- 
flux nee of tli is religion upon the mind, since no passage of the New 'Testament 
lias absolutely forbidden the custom; and it is merely therefore from the spirit, 
of the system of morality there displayed, that men collected what ought to be 
their conduct in this respect. Commanded to look upon all mankind as their 
brethren, it wanted little combination of the reasoning faculties to discover that 
it was incompatible with such an injunction to hold them in chains, exclusive of 
the benevolent effects upon the heart, which the religion was calculated gene- 
rally to produce, and which, when produced, did that from analogy which was 
not expressly commanded. After this, and what was said in the beginning of 
this section, it is of little consequence to object that the custom of slavery re- 
mained for a great length of time, or that the church itself was possessed of 
numbers of slaves. We have shown that the custom of enfranchisement was the 
effect chiefly of pious and christian motives, and that the example was generally 
set b> the ministers of religion. No law, it must be owned, is to be met with, by 
Which the custom was abolished all at once, nor could such a law have ever been 
justified: I do not mean on account of the claims of the rights of propeity, 
(which, if they are incompatible with divine institutions, should never be so much 
considered as to retard their effect,) but on the principles of the very benevo- 
lence which it was meant to consult; for the men who would have been the object 
of it, being thus thrown suddenly on the world, without protection, or the means 
of support, would have been put in a worse condition than they were in before. 
It must be owned also, that avarice, and the love of absolute dominion, might 
have thrown considerable obstacles in the way of the abolition. 

" When Suarez marks the difference w hich he very justly holds between 
the law of nations and the law of nature, he adduces among other proofs, the 
abolition of slavery as arising from the positive institutions of the Christian 
ehurch. 

" But nothing on this subject can be more forcible than the language of the 
learned Sir Thomas Smith, speaking of bondage and bondmen. "Howbeit,'' 
Sa\s he, "since our realme hath received the Christian religion, which inaketh 
us all in Christ, brethren, and in respect ot God and Christ eonservos; men be- 
ganne to have conscience to hold in captivitie and such extreme bondage, him 
whom they must acknowledge to he their brother, and as wee use to terme him, 
Christian; that is, who looketh in Christ, and by Christ, to have equal portion 
with them in the gospel and salvation. Upon this scruple, the holy fathers and 
friars, in their confessions, and specially in their extreme and deadly sicknesses, 
burthened the consciences of them whom they had in their hands; so that tem- 
poral men, by little and little, by reason of that terror in their conscience, w ere 
glad to manumitte all their villaines."* 

" Dr. Robertson, in a verj learned and copious note upon the state of slaves 
during the earlier ages in Europe, has forestalled much that might be adduced 
farther on the score of authority, with respect to enfranchisement on christian 
motives. To that note I shall therefore refer the reader, and content mvself 
with pointing out a few other instances, which powerfully confirm the opinion; 
sucl. as the decree of the third Lateran council, under I'ope Alexander III. bj 
which it is expressly declared, that all Christians ought to be exempt from slave- 
ry; and a law of Sweden, about the year 1299, known by the name of king liir- 
ger's law, by which the sale of slaves is prohibited, expressly on account ol the 
injustice of such a practice among men, -whom Christ made free at the price of 
his blood. 

* Commonwealth of Eugland, 13~. 



107 

From Robertson's Charles V. vol. 1st. note 20. 

"The gentle spirit of the Christian religion, together with the doctrines which 
it teaches, concerning the original equality of mankind, as well as the impartial 
eye with which the Almighty regards men of every condition, and admits them, 
to a participation of his benefits, are inconsistent with servitude. But in this, as ia 
many other instances, considerations of interest, and the maxims of false policy 
led men to a conduct inconsistent with their principles. They were so sensible, 
however, of the inconsistency, that to set their fellow Christians at liberty from 
servitude was deemed an act of piety highly meritorious and acceptable to Hea- 
ven. The humane spirit of the Christian religion struggled with the maxims and 
manners of the world, and contributed more than any other circumstance to in- 
troduce the practice of manumission. When Pope Gregory the Great, who flou- 
rished towards the end of the si\th century, granted liberty to some of his slaves, 
he gives this reason for it. 'Cum redemptor nosier, totius conditor naturae, ad 
hoc propitiatus humanam carnem voluit assumere, ut divinitate sux gratia, di- 
rempto (quo tenebamur captivi) vinculo, pristins nos rcstituerat iibertati; salu- 
briter agitur, si homines, quos ab initio liberos natura protulit, &. jus gentium ju- 
go substituit servitatis, in ea, qua nati fuerant, manumittentis bcneficio tibertate 
reddentur. — Gregor JYlajor. ap. Potgiess. lib. 4. c 1. § 3. several laws or char- 
ters founded on reasons similar to this, are produced by the same author Ac- 
cordingly a great part of the charters of manumission previous to the reign of 
Louis X. are granted pro amore Dei, pro remedio animse, k pro niercedse ani- 
m je. — Murat. Antiq. Ital. vol. 1. p. 849, 850. Du Cange, voc. manumissio. The 
formality of manumission was executed in a church, as a religious solemnity. 

" Manumissio : was frequently granted on death bed or by latter will. As the 
rninds of men are at that time awakened to sentiments of humanity and piety, 
these deeds proceeded from religious motives, and are granted pro redemptimie 
animse, in order to obtain acceptance with God 

" Conformably to the saint principles, princes on the birth of a son, or upon 
any other agreeable event, appointed a certain number of slaves to be enfranchi- 
sed, as a testimony of their gratitude to God from their benefit. — Marculsi 
Form. lib. 1. cap 39. There are several forms of manumission published by 
Marculfus, and all of them are founded on religious considerations, in order to 
procure the favour of God, or to obtain the forgiveness of their sins. — Lib. 11. c. 
23, 33, 34. edit. Baluz" 

" The influence ot Christianity in putting a stop to slavery, appears in the first 
Christian emperor Constantine, who commanded, under the severest penalties, 
all such as had slaves, to set th< m at liberty. He afterwards contrived to render 
the manumission of them much easier than formerly, for instead of recurring to 
the forms prescribed by the ltoman laws, which were attended with great diffi- 
culties, and a considerable expense, he gave leave to masters to enfranchise 
their slaves in the presence of a bishop, or a minister and a Christian assembly.' 
— Universal Bistort;, vol. xy.p. 574, 577. 

Note B. — Page 4. 

The following quotations from some of our State Constitutions, will show how 
far we are committed by our general principles. 

" All men are born equally free and independent. 

" All men have certain natural, essential, ,nfl inherent rights— among which 
are, the enjoying and defending life and liberty, acq liring, possessing, and pro- 
tecting property; and, in a word, of seeking and obtaining happiness. 



108 

" Every member of the community has a right to be protected by it, in the 
enjoyment of his life, liberty, and property." 

"A frequent recurrence to the fundamental principles of the Constitution, 
and a constant adherence to justice, moderation, temperance, industry, fruga- 
lity, and all the social virtues, are indispensably necessary to preserve the bless- 
ings of liberty and good government." Constitution of JYeiv Hampshire. 

" All men are born free and equal, and have certain natural, essential, and un- 
alienable rights: among which may be reckoned the right of enjoying and de- 
fending their lives and liberties; that of acquiring, possessing, and protecting pro- 
perty; in fine, that of seeking and obtaining their safety and happiness." 

" Government is instituted for the common good; for the protection, safety, 
prosperity and happiness of the people: and not for the profit, honour, and pri- 
vate interest of any one man, family, or any one class of men." 

" Each individual of the society has a right to be protected by it, in the enjoy- 
ment of his life, liberty, and property, according to the standing laws. 

" A frequent recurrence to the fundamental principles of the Constitution, and 
a constant adherence to those of piety, justice, moderation, temperance, indus- 
try, and frugality, are absolutely necessary to preserve the advantages of liberty, 
and to maintain a free government." Constitution of Massachusetts. 

" All men are born equally free and independent, and have certain natural, 
inherent, and unalienable rights, amongst which are the enjoying and defending 
life and liberty, acquiring, possessing, and protecting property, and pursuing and 
obtaining happiness and safety: therefore, no male person, born in this country, 
or brought from over sea, ought to be holden by law to serve any person as a 
servant, slave, or apprentice, after he arrives to the age of twenty -two years, nor 
female, in like manner, after she arrives to the age of eighteen years, unless they 
are bound by their own consent after they arrive to such age, or bound by law 
for the payment of debts, damages, fines, costs, or the like." 

Constitution of Vermont. 
" All men are born equally free and independent, and have certain inherent 
and indefeasiblt rights, among which are those of enjoying and defending life 
and liberty, of acquiring, possessing, and protecting property and reputation, and 
of pursuing their own happiness." Constitution of Pennsylvania. 

" Through Divine goodness, all men have, by nature, the rights of worshipping 
and serving their Creator according to the dictates of their consciences, of en- 
joying and defending life and liberty, of acquiring and protecting reputation and 
property, and in general of attainiug objects suitable to their condition, without 
injury by one to another; and as these rights are essential to their welfare, &c. 8cc. 
" All courts shall be open; and every man, for an injury done him in his repu- 
tation, person, moveable or immoveable possessions, shall have remely by due 
course of law, and justice administered according to the very right of the cause." 

Constitution of Delaware. 
" The doctrine of non-resistance against arbitrary power and oppression is ab- 
surd, slavish, and destructive of the good and happiness of mankind. 

" Every man hath a right to petition the legislature, for a redress of griev- 
ances, in a peaceable and orderly manner." Constitution of Maryland. 

" JYo man, or set of men, are entitled to exclusive or separate emoluments or 
privileges from the community, but in consideration ot public services. 

«' A frequent recurrence to fundamental principles is absolutely necessary to 
preserve the blessings of liberty. 

" Perpetuities and monopolies are contrary to the genius of a free state, and 
ought not to be allowed." Constitution of North Carolina. 

" All freemen, when they form a social compact, are equal; and no man, 



109 

or set of men, are entitled to exclusive, separate, public emoluments or privi- 
leges, from the community, but in consideration of public services. 

" All courts shall be open, and every person, for any injury done him in his 
lands, goods, person, or reputation, shall have remedy by the due course of law; 
and right and justice administered without sale, denial, or delay." 

Constitution of Kentucky. 

"There shall be neither slavery nor involuntary servitude in this state, other- 
wise than for the punishment of crimes, whereof the party shall have been duly 
convicted; nor shall any male person, arrived at the age of twenty -two years, nor 
female person, arrived at the age of eighteen years, be held to serve any person 
as a servant, under pretence of indenture, or otherwise, unless such person shall 
enter into such indenture while at a state of perfect freedom, and on condition of 
a bona fide consideration, received, or to be received, for their service, except as 
before excepted. Nor shall any indenture of any negro or mulatto hereafter 
made and executed out of this state, or, if made in the state, where the term of 
service exceeds one year, be of the least validity, except those given in the case 
of apprenticeships." Constitution of Ohio. 

" Government being instituted for the common benefit, the doctrine of non- 
resistance against arbitrary power and oppression, is absurd, slavish, and destruc- 
tive to the good and happiness of mankind. 

" All courts shall be open; and every man, for an injury done him in his lands, 
goods, person, or reputation, shall have remedy by due course of law, and right 
and justice administered without sale, denial, or delay." 

Constitution of Tennessee. 

" There shall be neither slavery nor involuntary servitude in this state, other- 
wise than for the punishment of crimes, whereof the party shall have been duly 
convicted. Nor shall any indenture of any negro or mulatto, hereafter made and 
executed out of the bounds of this state, be of any validity within the state." 

Constitution of Indiana. 

" Neither slavery nor involuntary servitude shall hereafter be introduced into 
this state, otherwise than for the punishment of crimes, whereof the party shall 
have been duly convicted; nor shall any male person, arrived at the age of twen- 
ty-two years, nor female person, arrived at the age of eighteen years, be held to 
serve any person as a servant, under any indenture hereafter made, unless such 
person shall enter into such indenture while in a state of perfect freedom, and on 
condition of a bona fide consideration, received, or to be received, foi» their ser- 
vice. Nor shall any indenture of any negro or mulatto, hereafter made and ex- 
ecuted out of this state, or, if made in this state, where the term of service ex- 
ceeds one year, be of the least validity, except those given in cases of apprentice- 
ship." Constitution of Illinois. 

Note C. — Page 5. 

The doctrine of the natural subjection of some one part of the human race to 
the other, originated with Aristotle. In his first book of Politics, his position is 
that " the Greeks and some of the adjoining nations, being superior in genius, 
have a natural right to empire, and that the rest of mankind appear to be, from 
their innate stupidity, intended by nature for slavery and toil." All the mo- 
dern writers on the law of nature have been at pains to refute this fine theory, 
especially Puffendorf. Hobbes approached to it in his doctrine that every man 
being by nature at war with every man, the one has a perpetual right to reduce 
the other to servitude, when he can accomplish the end. He also, has been assailed 



110 

by the jurists, and signally defeated in the argument. There is not, with these 
exceptions, one writer of note on the Law of Nature and Nations, whose authority 
can be fairly pleaded in an attempt to justify slavery of such an origin and cha- 
racter as our Negro-Slavery; and it is, therefore, surprising that an American 
writer in replying to the charges of the Edinburgh Reviewers on this head, should 
have referred them to the Grotiuses, Puffendorfs, and Paleys whose principles 
pronounce in fact our condemnation. They admit slavery to be lawful only 
when founded on captivity in war, crime, or self-sale; in respect to the first and 
last source, their doctrine is exploded in the works of Montesquieu, Vattel, 
Beattie, Blackstone, &c 

Mr. Fox in one of his masterly speeches respecting the slave trade thus animad- 
verts on the doctrine of Aristotle and his disciples. 

" I recolli ct that one of the ancient philosophers, no less a character than 
Aristotle, wishing to establish some defence of slavery, says, ' Tine barbarians 
are of a different race from us, and -were born to be slaves to the Greeks' Now, 
sir if any better reason could be found in justification of slavery, I should think 
that most fertile genius would have been the first to discover it. He saw domestic 
tyranny exercised in an extreme degree, and this in states where political tyranny- 
was not suffered. He asked himself the reason, and after he had searched his 
wonderful invention (finding slavery to be tlie practice of his country, and not 
wishing to condemn it) he could resort to no other argument than that ' the 
Barbarians were inferior to the Greeks by nature; and the Greeks have strength 
to conquer them ' It is true many of these Barbarians were of the same colour 
with the Greeks; still, however, it was necessary to establish a distinction in the 
nature of the different men, in order to assign any real reason for permitting the 
difference in their treatment. 

" \s to setting up a distinction of nature between people of our own colour; it is 
what no one will bear to hear. To say there are any whites of an inferior species, 
marked out by nature to be slaves toother whites, is not to be borne. It would 
fill us all with horror to authorize slavery any where, on this principle, with 
respect to white men. Is it not quite as unjust, because some men are black, to 
sav there is a natural distinction as to them; and that black men, because they 
an- black, ought to be slaves? Set aside the difference of colour, and is it not the 
height of arrogance to allege, that because we have strong feelings and cultivated 
minds it would be a great crutlty to make slaves of us; but that because they are 
vet ignorant and uncivilized, it is no injury at all to them? Such a principle once 
admitted, lays the foundation of a tyranny and injustice that have no end." 

Note D. — Page 13. 

Extracts from the Inaugural Address of General Washington. 
" It would be peculiarly improper to omit in this first official act, my fervent 
supplications to that Almighty Being who rules over the universe,— who pre- 
sides in the councils of nations, - and whose providential aids can supply every 
human defect, that his benediction may consecrate to the liberties and happiness 
of the people of the United States, a government instituted by themselves for 
these essential purposes: and may enable every instrument, employed in its ad- 
ministration, to execute with success the functions allotted to his charge. In ten- 
dering this homage to the great Author ol every public and private good, I as- 
sure myself that it expresses your sentiments not less than my own. nor those 
ofm\ 1 How citizens at large, less than either. No people can be bou.i,; to ac- 
knowledge and ado.e the invisible hand, which conducts the affairs of men, more 



Ill 

Uian the people of the United States. Every step, by which they have advanced 
to the character of an independent nation, seems to have been distinguished by 
some token of providential agency. And in the important revolution just accom- 
plished in the system of their united government, the tranquil deliberations and 
•voluntary consent of so many distinct communities, from which the event has 
resulted, cannot be compared with the means by which most governments have 
been established, without some return of pious gratitude, along with an humble 
anticipation of the future blessings which the past seem to presage." 

" The foundations of our national policy will be laid in the pure and immutable 
principles of private morality; and the pre-eminenee of free government, be ex- 
emplified by all the attributes which can win the affections of its citizens, and 
command the respect of the world. I dwell on this prospect with every satisfac- 
tion which an ardent love for my country can inspire; since there is no truth 
more thoroughly established, than that there exists in the economy and course 
of nature, an indissoluble union between virtue and happiness, between duty and 
advantage, between the genuine maxims of an honest and magnanimous policy, 
and the solid rewards of public prosperity and felicity: since we ought to be no 
less persuaded, that the propitious smiles of heaven can never be expected on 
a nation that disregards the eternal rules of order and right, which heaven 
itself has ordained." 

Extracts from the answer of the Senate and House of Representatives to that 

Address- 

"We feel, sir, the force, and acknowledge the justness of the observation, that 
the foundation of our national policy should be laid in private morality. If indi- 
viduals be not influenced by moral principles, it is in vain to look for public virtue; 
it is, therefore, the duty of legislators to enforce, both by precept and example, 
the utility as well as the necessity of a strict adherence to the rules of distributive 
justice." 

" We feel with you the strongest obligations to adore the invisible hand which 
has led the American people through so many difficulties, to cherish a conscious 
responsibility for the destiny of republican liberty, and to seek the onlj sure 
means of preserving and recommending the precious deposit in a system of 
legislation, founded on the principles of an honest policy, and directed by the 
spirit of a diffusive patriotism." 

Note E. — Page 15. 

The two states mentioned in the text, Georgia and South Carolina, were par- 
ticularly averse to any interference with the slave-trade, on the part of the 
Federal Government. In the convention most of the states were anxious to in- 
sert a provision authorizing the immediate, total abolition of the diabolical traffic. 
This was resisted peremptorily by the two just mentioned; and the compromise 
was at length effected which is found in the ninth section of the first article of the 
constitution. The earnestness of Georgia and South Carolina was further shown 
by their insisting on the security in the fifth article, against any amendment to the 
constitution affecting the faculty reserved to them, ot continuing to prosecute the 
trade for twenty years. In order to carry the point they cons, nted, though with 
the greatest reluctance, to the power over navigation and commerce. There is 
an explanation of this adjustment in the Virginia debates, from Mr. George Ma- 
son, which is worth transcribing. 

" This business was discussed at Philadelphia for four months, during which 
time the subject of commerce and navigation was often under consideration; and 
I assert that eight states out of twelve, for more than three months, voted for re 



112 

quiring; two-thirds of the members present in each house to pass commercial and 
navigation laws. True it is, that afterwards it was curried by a majority, as it 
stands. If I am right, there was a great majoritv for requiring two-thirds of the 
states in this business, till a compromise took place between the Northern and 
Southern States; the Northern States agreeing to the temporary importation of 
slaves, and the Southern States (Georgia and South Carolina) conceding, in re- 
turn, that navigation and commercial laws should be on the footing on which they 
now stand. If I am mistaken, let m • he put right These are my reasons for say- 
ing that this was not a sine qua non of their concurrence. The Newfoundland 
fisheries will require that kind of security which we are now in want of. The 
Eastern States therefore agreed at length, that treaties should require the con- 
sent of two-thirds of th - members present in the Senate." 

Note F. — Page 21. 

Mr. Madison stated, in the Virginia Convention, that the restriction upon 
Congress in regard to the suppression of the slave-trade, was "a restraint on 
the exercise of a power expressly delegated to Congress, namely, that of regu- 
lating commerce with foreign nations." Governor Randolph made the same alle- 
gation (p. 4'28, Virginia Debates.) The general act of Congress of 1807, sup- 
pressing the slave-trade, shews a sense of an entire control over the domestic 
commerce in slaves, by the regulations which it makes respecting their trans- 
portation coastwise. The exception made in favor of internal transportation 
would have been wholly superfluous, had not a constitutional power been felt to 
exist. 

Note G. — Page 25. 

We are told by Mr. Jefferson in his Notes on Virginia, that emancipation was 
formally planned there in the legislature. His language is as follows: The first 
assembly which met after the establishment of the commonwealth appointed a 
committee to revise the whole code of laws. Among the most remarkable altera- 
tions proposed in the plan of revisal was the following. 

"To emancipate all slaves born after the passing the act. The bill reported 
by the revisors does not itself contain this proposition; but an amendment con- 
taining it was prepared, to be offered to the legislature whenever the bill should 
be taken up, and further directing, that they should continue with their parents 
to a certain age, then be brought up, at the public expense, to tillage, arts or 
sciences, according to their geniuses, till the females should be eighteen, and 
the males twenty -one yea s of age, when they should be colonized to such places 
as the circumstances of the time should render most proper, sending them out 
with arms, implements of household and of the handicraft arts, seeds, pairs of 
the useful domestic animals, &c. to declare them a free and independent people, 
and to extend to them our alliance and protection, till they have acquired 
strength; and to send vessels at the same time to other parts of the world for an 
equal number of white inhabitants; to induce whom to migrate hither proper en- 
couragements were to be proposed." 

Patrick Henry, in the letter to \nthony Benezet already quoted, expresses 
himself thus as to abolition. " / believe a time vn& come xulien an opportunity 
•will be offered to abolish this lamentable evil." This opportunity of beginning the 
work, is now offered in the possession of the vast province of Louisiana, to which 
Jud"-e Tucker in :is Not. s referred, as a proper theatre for colonization, even 
while it was held by Spain. There is room enough therefor the establishment of 
a colony of blacks which might, with proper aid and care in the outset, become a 



113 

flourishing community; and gradually absorb a large proportion of the 9laves in 
the southern states. If we suppose that they would act finally, in their indepen- 
dent state, as our enemies, they would still be less formidable without, than they 
are likely to prove within. 

Note H. — Page 32. 

The framers of the constitution were almost universally familiar with the 
Commentaries of Blackstone, in the first volume of which there is a complete re- 
futation of the notion of a right of property in the offspring of the sla\e Judge 
Tucker, in his notes, having quoted Blackstone on this head, makes the follow- 
ing observation. 

" Thus by the most clear, manly, and convincing reasoning does this excellent 
author refute every claim, upon which the practice of slavery is founded, or by 
which it has been supposed to be justified, at least in modern times." 

Judge Tucker then speaks from himself, in a manly and convincing strain, 
which deserves repetition. 

" Men who will shut their ears against this moral truth, that all men are by 
nature free, and equal, will not even he convinced that they do not possess a pro- 
perty in an unborn child; they will not distinguish between allowing to unborn 
generations the absolute and unalienable rights of human nature, an i taking 
away that which they now possess; they will shut their ears against truth, should 
you tell them the loss of the mother's labour for nine months, and the mainte- 
nance of a child for a dozen or fourteen years, is amply compensated by the ser- 
vice of that child for as many years more, as he has been an expense to them. 
But if the voice of reason, justice, and humanity, be not stifled by sordid avarice 
or unfeeling tyranny, it would be easy to convince even those who have enter- 
tained such erroneous notions, that the right of one man over another is neither 
founded in nature nor in sound policy. That it cannot extend to those not in be- 
ing; that no man can in reality be deprived of what he doth not possess: that 
fourteen years of labour by a young person in the prime of life, is an ample com- 
pensation for a few mouths of labour lost by the mother, and for the maintenance 
of a child, in that coarse homely manner that negroes are brought up: and lastly, 
that a state of slavery is not only perfectly incompatible with the principles of 
government, but with the safety and security of their masters. Histoiy evinces 
this. At this moment we have the most awful demonstration of it. Shall we then 
neglect a duty, which every consideration, moral, religious, political, or selfish re- 
commends? Those who wish to postpone the measure, do not reflect that every 
day renders the task more arduous to be performed. We have now 300,000 
slaves among us. Thirty years hence we shall have double the number. In sixty 
years we shall have 1,200,000: and in less than another century from this day, 
even that enormous number will he doubled. Milo acquired strength enough to 
carry an ox, by beginning with the ox while he was yet a calf. If we complain 
that the calf is too heavy for our shoulders, what will the ox be?" 

Note I.— Page 32. 

Extracts from Beanie's Elements of Moral Science. Part III. 
"It is said, 'That the Africans, whom our planters, and their emissaries, buy 
for slaves, are publicly exposed to sale by their countrymen; and that, if we did 
not buy them, others would.' In answer to this, I observe, in the first place, that 
it cannot be pretended, that all the negroes imported into our colonies from Af- 
rica are procured by sale iu a public market; for it is notorious, that many of 
'hem are stolen, pp obtained by other indirect methods. Nor, secondly, can it be 



114 

pretended, that the planter, who buys them when imported, makes any inquiry, 
either into their former condition, or into the legality of that power which the 
merchant assumes over them; it being equally notorious, that, in every colony, 
the circumstances of their being black, and imported from Africa, are alone suf- 
ficient, in the eye of the law, to fix them in slavery for life, and to entail the 
same uiin upon their offspring. 

" Thirdly, Though ignorant and barbarous nations, like those of Guinea, should 
sell their prisoners, it will uot follow, that we have any right to buy them; unless 
we did it with a view to deliver them from misery, to improve their manners, and 
to instruct them in the Christian religion; purposes, which, it is well known, never 
enter into the head of the slave merchant. Fourthly, It is strange, that merchants 
who claim the privilege of purchasing whatever is offered at a priee, should be so 
ignorant in their own trade, as not to know, that those goods only are market- 
able, for which there is a demand; and that buyers, as well as sellers, arc neces« 
sary in commercial intercourse. Will it be pretended, that the petty kings of 
Africa would continue to enslave their subjects and neighbours with the same 
alacrity as at present, if our West Indians and the North Americans were to 
purchase no more slaves? As well may it be pretended, that the demand for to- 
bacco would not be lessened, though all Europe, Asia, and Africa, were to dis- 
continue the use of it. 

" Hut, passing this, let me ask, in the fifth place, who it was that first taught 
the negroes of Africa to sell one another? Who are they, who tempt those un- 
happy people, by every sort of bribery that can be supposed to have influence on 
then), to plunder and betray, every man his neighbour, in order to get together 
a multitude of human victims to answer the yearly demand? Are not Europeans, 
and European planters, the first movers in this dreadful business? Does it then 
become them to charge Africa with the whole guilt of a commerce, which, but 
for tlieir cunning cruelty, and avarice, would not now exist, and would never 
have existed? This sort of casuistry may justly be termed diabolical: for it is thus, 
that the most malevolent of all beings is said, first to tempt and corrupt, and 
then to accuse. 

"1 shall only add, with respect to the argument now before us, that goods are 
sometimes exposed to sale, which every trader knows it is not lawful to buy. He 
who purchases what he knows to have been stolen, is a partner in the guilt of the 
thief. He, who buys a human being, with a view to reduce him to the condition 
of a wretched negro slave, does every thing in his power to destroy the soul and 
the body of that human being, in order to get money lor himself. And he, who 
tempts a poor barbarian king to punish with slavery the most inconsiderable tres- 
pass, and to involve the innocent in the same ruin with the guilty, that he may 
have men to give iu exchange for the trinkets and luxuries of Europe, does every 
thing that with impunity he can do, to confound truth and justice; to introduce 
wickedness and misery into the dominions of that barbarian; and to promote the 
views, and extend the influence, of the great adversary of God and man. 

" It is said, ' that the negroes are happier in our colonies than they were in 
their own country.' Supposing this true, it will not follow, that we are excusable 
in making them slaves, unless we did it with a sincere intention to make them 
happy; and with their free consent, founded on a belief that we mean to do so. 
If I, by oppression, reduce an innocent man to poverty, and if Providence endow 
him with strength of mind to bear his misfortunes as becomes a Christian, it is 
possible he may be happier in adversity than ever he was in prosperity: but will 
this excuse me for what 1 have done? If it is unlawful to enslave an inoffensive 
lellow creature, no unforseen and unintentional good consequences, that may 
fellow upon it, will ever render it lawful. The knife of the rufliau mav dismiss a 



115 

^ood maa from the troubles of this life, and send him to heaven: but is it therefore 
lawful to murder a good man! If we estimate the morality of actions, not by the 
intention of the agent, but by the consequences, whereof, by the over-ruling care 
of a good Providence, they may be productive, we shall at once confound all moral 
principles. 

" In this plea of the slavemongers there is something particularly shocking. 
By their cunning, and cruelty, and love of money, they have introduced many 
evils into the native countries of the negroes; which, according to the best histo- 
rical Information, were formerly regions of plenty and peace. And now, when 
they have stolen, or forced away, the unhappy victim into a distant land, and 
torn him for ever from the arms of consanguinity and friendship, and from every 
other comfort which remained for him in this world, and afterwards loaded him 
and his offspring with the chains of intolerable servitude, they are pleased to 
affirm, that he is obliged to them for delivering him from calamities, which by 
their means he might have been exposed to in his own country. As if an enemy 
were first to fill every corner of my house with poisonous or inflammable mate- 
rials, and then violently to seize and cast me into a dungeon for life; telling me, 
that in this he did me a great favour, for that, if he had not forced me from 
home, I might have been burned, or poisoned, in consequence of the snares he 
had laid for me. What answer is due to such reasoning? 



Note J. — Page 36. 

The lexicographical definition of right is a just claim; and Johnson contradis- 
tinguishes it from might in one of his illustrations of the word. Paley explains 
right to be a claim consistent -with the will of God. See the 9th and 10th Chapter 
of his M. and P. Philosophy, for doctrines on this head which tally ill with the 
Missouri pretension. " ltight" says Grotius (B. I. C. 1. L. of W. fct P.) " is a 
moral quality annexed to the person, enabling him to have and do something 
justly." See his Preliminary Discourse particularly, on this point. Puffendqrf 
writes thus: 

" Moral power is that by -which a man is enabled to do a thing lawfully and 
with a moral effect: which effect is, That the person exercising this power, shall 
lay an obligation ou others to perform some certain business, which he requires, 
or to admit some action of his as valid, or not to stop and hinder it; or that he 
shall confer on others a license of doing or possessing something, which license 
they did not before enjoy." 

"Sight IB that moral quality by which we justly obtain either the government 
of persons, or the possession of things, or by force of which we may claim some- 
thing as due to us. There seems to be this difference between the terms of 
power and right that the first does more expressly import the presence of the 
said quality, and does but obscurely denote the manner how one acquired it, 
whereas the word right does properly and clearly show that the quality was 
fairly got and is now fairly possessed." (B 1. C. 1. L. of N. and Nations) See also 
his 3d B. Ch 2d and C. 5th. See, too, Vattel's Preliminaries, for principles 
which show the absurdity of classing among the rights of sovereignty, the estab- 
lishment of hereditary servitude. 

Note K. — Page 47. 

On the subject of the rights, privileges, and immunities of citizens of the Uni- 
ted Slates, as such, there is a case in 1 Cranch, Rep. (Hepburn Vs. Dundas and 



116 

F.lijev) of which the doctrine is not a little remarkable. The following passages, 
which ! extract from the arguments of the Counsel and the opinion of the Court, 
shew that the character of a citizen of the United States, is not held to imply ne- 
cessarily a in mher of the Union. 

Charles Lee — " Hot there may he a citizen of the United States who is not a 
citizen of any one of the States. The expression a citizen of a State, has a con- 
stitutional meaning The States are not absolutely sovereigns, but (if I may use 
the expression) they we demisovereigns." 

/•-'. J. Lee, in reply. " It is true that the citizens of Columbia are not enti- 
tled to the elective franchise in as toll a manner as the citizens of states. They 
ha\e no vote in the choice of president, vice-president, senators and representa- 
tives in Cnngi-rss. Hut in this they are not singular. More than seven-eighths of 
the lice white inhabitants of Virginia are in the same situation. Of the white po- 
pulation of Virginia one half are female — half of the males probably are under 
age — and viot more than one half of the residue are freeholders and entitled to 
vote at elections The same case happens in some degree in all the states. A 
great majority are not entitled to vote But in every other respect, the citizens 
of Columbia are entitled to all the privileges and immunities of citizens of the 
United States." 

Chief Justice Marshall. — "It is true that us citizens of the United States., 
and of that particular district which is subject to the jurisdiction of Congress, it 
is extraordinary that the courts of the United States which are open to aliens, 
and to the citizens of every stale in the Union, should be closed upon them. 
But this is a subject for legislative not for judicial consideration " 



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